➥ CASE SUMMARY OF:
Philip Obiora v. Paul Osele (1989) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.70/1987
➥ JUDGEMENT DELIVERED ON:
Friday, the 27th day of January, 1989
➥ AREA(S) OF LAW
Want of prosection;
Striking out a brief;
➥ NOTABLE DICTA
⦿ OBJECTION TO SPECIFIED DOCUMENT
An objection to one specified document cannot be taken as an objection to another document bearing a totally different date. – Obaseki, JSC.
⦿ PARTY NOT PUNISHED FOR COUNSEL MISTAKE
It is a very well established principle that the object of courts is to decide the rights of parties and not to punish them for the mistake they or their counsel may make in the conduct of their cases or appeals by deciding otherwise than in accordance with their rights. – Oputa JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Obaseki, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief B. D. O. Anyaegbunam.
⦿ FOR THE RESPONDENT
Mr. G.N. Okafor.
➥ CASE HISTORY
The Appellant was plaintiff in suit No.PHC 350/81, he instituted against the respondent as defendant at the High Court of Rivers State in the Port Harcourt Judicial Division claiming: (1) N20,160.00 as money had and received by the defendant on behalf of the plaintiff for 7 years at N2,880.00 per annum; Particulars, inter alia, (a) Amount of N5,000.00 rent received from the Abandoned Property Implementation Committee as agent of plaintiff;
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/appellant 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.
Upon appealing by the Appellant, in the Court of Appeal, the Appellant’s brief was struck out for noncompliance with the rules of the Court of Appeal, and the Appeal dismissed for want of Prosecution.
Appellant has appealed the said ruling.
➥ ISSUE(S) & RESOLUTION
[APPEAL: ALLOWED]
I. Whether the judgment of the Court of Appeal wherein the appeal to the Court of Appeal was dismissed for want of prosecution can be sustained having regard to the fact that the Court of Appeal had heard in part oral argument from the appellant’s counsel and had before it briefs of the appellant?
RULING: IN APPELLANT’S FAVOUR.
A. Since the matter in the instant appeal was listed before the Court of Appeal as has been shown above, before 31st December, 1984, the matter on appeal is excepted from the operation of the provision of Order 6 of the Court of Appeal Rules 1981 as amended. Even if the provisions of Order 6 applied, the provisions of Rule 9(a) ought to have been invoked by the court. It reads: “Oral argument will be allowed at the hearing of appeal to emphasize and clarify the written argument appearing in the briefs filed in court.”
B. I agree with learned counsel for the appellant that the Court of Appeal (Amendment) Rules 1984 never made provision for striking out a brief filed by the appellant on the ground of want of form. Therefore, the purported exercise of the powers of dismissal for want of prosecution in this matter by the Court of Appeal under Order 6 Rule 10 merely because the brief was not in the form set out by the rules was a wrongful exercise of power and occasioned a serious miscarriage of justice. There is no doubt that the brief of 16th April, 1985 filed on 8th of July, 1985 needed a lot of improvement to bring it up to standard. The appellant’s counsel appears to have a lot of material but the arrangement and presentation in the brief is unintelligible. Be that as it may, it is his oral argument in the appeal that he has put down in writing and the court has to make the best out of it in the interest of justice. There is no doubt that what may be described as the failure of appellant’s counsel to master the art of drawing up a brief in consonance with the guidelines set out in the Rules irritated the learned Justices of the Court of Appeal. Judges should not lose their temper with counselor litigants no matter how irritable they may be so that the composure required to administer justice may not depart from the temple of justice. If counsel lacks the necessary skill in the formulation of the appellant’s brief, the appellant’s case should be judged by the merit of the brief. The brief should not be thrown out to enable the appellant suffer the sanction of failing to file a brief.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
