Dismissal Of Appeal For Lack Of Diligent Prosecution Where The Appellant Failed To File His Brief Within Time Is Technical Justice — Chief Yomi Alliyu, SAN

    * The Only Way Of Reducing “Oungba Un Kan” Syndrome Is To Reconsider The Condition Of Service Of Judges *Thanked His Lordship, Justice Danjuma JCA, In That, He Submitted 3 Landmark Cases From His Division For His Application For SAN. Chief Yomi Alliyu, SAN, has said that one of the ways of curbing delayed appeal is for Presiding Court of Appeal justices to be up and doing in watching the list of cases in his or her Court. The learned silk made this statement, in a speech delivered on the 8th day of April, 2019, on behalf of the inner bar at the Special court session in the Court of Appeal, Akure Judicial Division, held at the High Court of Justice, Osogbo, Osun State. According to him, the appeals at the Court of Appeal continue to mount every day, thus the only way out is to have three simultaneous sittings in the judicial Divisions apart from holding Special Sessions in States other than where the Division sits, adding that this method will no doubt help in reducing backlog of appeals. Stressing on why judges must watch the list of cases in their court, CHIEF YOMI ALLIYU, SAN, eulogized his lordships, Ogunbiyi, Modupe Fasanmi,  Kekere-Ekun and Chidi Uwa, JJ.CA, whom he described as the three learned witches. He noted that it is on record that Ogunbiyi, JSC concluded more appeals with the “three learned witches” that she worked with, adding that, they called them “witches” because when any three of them sat together there was no escape for indolent counsel. “Another way of curbing delayed appeal is for Presiding Court of Appeal justices to be up and doing in watching the list of cases in his Court. Court officials have a way of superseding their friends’ cases over other appeals especially motions. Hitherto, in your Division My Lord Kudirat Kekere-Ekun, PJCA (as he then was) had a book for Head of Litigations to enter all motions with dates. Appeals were also listed therein. HOD Litigations will have a very strong reason to keep a motion perpetually unlisted. “My Lord learned this from Clara Bata Ogunbiyi, PJCA of Ibadan Division (as he then was). It is on record that Ogunbiyi, JSC concluded more appeals with the “three learned witches” that she worked with. We called them “witches” because when any three of them sat together there was no escape for indolent counsel. They sit till sometimes 5.00p.m. May God continue to bless my Lords Ogunbiyi, Modupe Fasanmi, Kekere-Ekun and Chidi Uwa, JJ.CA. Their activities made many people to have court of appeal cases for appointment as SAN. I had 9 appeals decided by four of them,” he said. Speaking further, he said that if Courts are the last hope of common man, then those saddled with the administration of justice have a duty to ensure that this hope is not dashed. He also looked at the Court of Appeal Rules in order to consider what can be done to the rules eating deep into the rights of citizens and/or constituting clogs in the speedy hearing of appeals. He started by considering Order 19, Rule 10, which according to him, provides for dismissal of appeal for lack of diligent prosecution where the Appellant failed to file his brief within time. He noted that this order which has been interpreted by the Supreme Court to mean dismissal on merit is a practitioner’s nightmare. He emphasized that same amounts to technical justice. “First and most important is order 19, rule 10 (the old Order 6 rule 10). It provides for dismissal of appeal for lack of diligent prosecution where the Appellant failed to file his brief within time. This has been interpreted by the Supreme Court in a plethora of cases to mean dismissal on merit. It is a practitioner’s nightmare. “However, we have heard overtime that the ship of justice had left the coast of technicality to substantial justice. This was so decided in the appeal I argued in this Division in 2015 to wit NATHANIEL AGUNBIADE & OR v. OKE & ORS. If dismissal for want of diligent prosecution is not technical justice one wonders what will be technical justice. Clients do not write briefs but counsel. Then why should the Court visit the sin of counsel on clients against the age long principle to the contrary? Can this provision stand in the face of the fair hearing provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?” he asked. He also criticized Order 17 which is to the effect that Notice of Appeal in criminal cases must be signed by the defendant personally. According to him, apart from road hazard, it will entail great expense on a counsel doing pro bono to travel from Akure to Abeokuta where condemned inmates are kept. This explains why there are delays in criminal appeals notwithstanding the provisions of Administration of Criminal Justice Act. Also, the learned silk admonished the bench on why it should be up and doing. According to him, the only way of reducing “Oungba un kan” syndrome is to reconsider the condition of service of judges which can only be done by full autonomy for the Judiciary. “The judiciary will be busy. The Bar is in business. The bench is justifying the salary it earns. Or why will a judge be lobbying his Chief Judge to nominate him for Election Tribunal. Some judges of High Courts refused to be transferred away from the headquarters to other towns on health ground. The question that arises is why will such a judge with health challenges lobby his Chief Judge for membership of Election Tribunal whose sitting is from day to day? “With the events unfolding in recent times it seems as if both the Bar and the Bench are in business. Some judges have suddenly become millionaires and secured employments for their children by patronising politicians appearing before them in pre-election and election cases! “In this period when the difference between APC and PDP is the difference between 6 and half a dozen, judges in business should be careful. The politicians who brought PDP goodies yesterday is in APC today and vice versa. Lawyers follow their clients too except ethical ones. Our clients tell us stories. Clients now openly tell their counsel that, “oga, don’t trust him. Oungba un kan (he accepts “gifts”). I agree and know as a fact that most of these “Oungba un kan” could be lies by politicians to swindle their godfathers but recent disclosure by anti-corruption agencies proved that there are some ‘’Oungba un kan’’ judges. “The only way of reducing “Oungba un kan” syndrome is to reconsider the condition of service of judges. This can only be done by full autonomy for the Judiciary. I have seen many Osun judges standing by their broken down vehicles on Gbongan-Ibadan highway! It should be declared humanis juris gentuum for any government to deprive a judge of good things of life! A judge of the High Court standing in the dense forest is an easy target for herdsmen and canon folder for armed robbers seeking vengeance. “State Chief Judges should as a matter of urgency send a bill to the House of Assembly for the establishment of Judges Pensions Board. This should take care of not only the pensions of retired judges but also their welfare especially those bordering on health care. A judge starred in the face with emptiness on retirement might be tempted to help himself out with “last chance” judgment!” he added.]]>

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