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Supreme Court seeks end to rules that hamper justice
By Gbolahan Gbadamosi, Asst. Judicial Editor
IS it equitable for the rigidity of rules to stand in the way of justice? Should a litigant lose his case, not on its merit but due to technicalities? The Supreme Court thinks not and has advised the judicial chamber next to it in ranking, the Court of Appeal, to manifest this.
The apex court wants the President of the Court of Appeal, Justice Umaru Abdullahi, to amend a rule of the lower court, which the highest judicial chamber believes is militating against attainment of justice.
The apex court was compelled to make the call in a case between Kraus Thompson Organisation Vs NIPSS cited as (2004) 17 NWLR P.1 901 or (2004) 3SC Pt. 1 P.16, which was released at the weekend.
In the suit, the appellant (Kraus Thompson) lost its case due to the rigidity of Order 6 Rule 10 of the Court of Appeal (Amendment) Rules 1984.
The rule reads: "Where an appellant fails to file his brief within the time provided for in the Rule 2 of this Order, or within the period as extended by the court, the respondent may apply to the court for the appeal to be dismissed for want of prosecution."
The Supreme Court advised that the provision "dismissed" be changed to "strike out". A dismissal terminates the matter while to "strike out" leaves an opportunity for the aggrieved party to re-litigate and possibly get justice in the case.
The suit was filed at the Lagos High Court by Kraus Thompson over a transaction in foreign currency in respect of outstanding payment for the supply of books, journals and/or periodicals against NIPSS.
On May 13, 1996, Justice Solomon Humponu-Wusu, then of Lagos High Court, entered judgment in favour of Kraus Thompson.
The NIPSS consequently filed an application for an order, among others, to set aside the judgment on the ground that the court lacked jurisdiction to entertain the claim. The application was dismissed.
Dissatisfied with the decision of the High Court, the NIPSS proceeded to the Court of Appeal. But when the appellant failed to file its brief of argument within time, the defendant applied by a motion to dismiss or strike out the appeal for want of diligent prosecution which was granted.
But the application of NIPSS for re-listing of the appeal was granted on the ground that "at the time the appeal was struck out, its counsel was in the Court of Appeal's Registry filing its brief and an application for extension of time to file the appeal."
Equally dissatisfied, Kraus Thompson (now appellant) through its counsel, Mr. Segun Odubela of Rickey Tarfa (SAN) & Co., appealed against the ruling. It argued that by virtue of Order 6 Rule 10 of the 1984 rule, the Court of Appeal lacked the jurisdiction to re-list the matter.
Odubela, who had A. Aina and Segun Jolaawo with him, cited a plethora of legal authorities. They include Attorney General of Lagos State & Dosunmu (1989), 3 NWLR (Pt. 111) 552, 557; Government of Kwara State v. Gafar (1997) 7 NWLR (Pt. 511 51 e 53; Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 e 50; Ajomale v Yadaut (No. 2) (1991) 5 NWLR (Pt. 191) 266 3 266 and Badejo v Federal Minister of Education (1996) 8 NWLR (Pt. 464).
Delivering the lead judgment, in which Chief Justice Muhammadu Lawal Uwais also participated, Justice Niki Tobi said that with the provision of Order 6 Rule 10 of the Court of Appeal Rules, "it is clear from the above that failure on the part of an appellant (respondent) to file brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent."
Justice Tobi recalled to Order 6 rule 9 of the Supreme Court Rules 1985 which has a similar provision. The apex court's rule, however, only provides for the striking out of the suit in such circumstances. Tobi therefore recommended the apex court's rule "to the President of the Court of Appeal in the interest of justice for consideration in amending the Rule."
The Supreme Court justice added: "Where provision of a statute or rule of court is clear, the duty of the court is to interpret the clear provision by giving the plain wordings their ordinary interpretation without more."
He added: "It is not the function of a court of law to sympathise with a party in the interpretation of a statute merely because the language of the statute is harsh or will cause hardship".
Tobi concluded by allowing the appeal of Kraus Thompson, saying: "Much as I realise that so much hardship is caused to the respondent (NIPSS), I am bound to interpret the clear wording of Order 6 Rule 10."
He awarded N10,000.00 costs in favour of the appellant.
In his supporting judgment, Chief Justice Uwais also recommended the apex court's Order 6 Rule 9 of the 1985 rules "to the Honourable President of the Court of Appeal.
"Order 6 Rule 10 of the Court of Appeal Rules, 2002 still bears the same provisions as the Court of Appeal Rules, 1981 as amended," he added.
Justices Sylvester Umaru Onu, Aloysius Iyorgyer Katsina and Umaru Atu Kalgo also took part in the judgment.`
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