Area of Law:
ACTION, APPEAL, COURT, STATUTE, PRACTICE AND PROCEDURE

Summary of Facts
The Applicant whose appeal was dismissed by the Court of Appeal for failure to file the Appellant’s Brief of Argument, brought before the court an application pursuant to Orders 4 Rule 6 Rule, 77 Rule 10, 20 Rule 2 of the 2011 Rules of the Court of Appeal, seeking an order of the Court to relist the Appeal, enlarge the time to do the needful and stay execution of the judgment of the trial court pending the determination of this application.

Held
Application not granted

Issues for Determination

• Whether the honourable court is functus officio, or seized with requisite jurisdiction to grant the applicant’s motion, particularly to relist the applicant’s appeal which was struck out on the 5th of November, 2013 for want of diligent prosecution, in the absence of appellant’s brief of argument duly filed as at that date.

Rationes
DISMISSAL OR STRIKING OUT OF AN APPEAL – ONCE THE COURT SUO MOTU STRIKES OUT AN APPLICATION, ORAL APPLICATION FOR DISMISSAL MATTERS LESS.
‘‘It is the considered opinion of this court that in the same token it can be argued that if this court can suo moto dismiss or strike out an appeal, it should matter even less that the application to dismiss was made orally.’’ PER M. MUSTAPHA, J.C.A.

DISMISSAL – ESSENCE OF A DISMISSAL
“The essence of the dismissal is that the court, and as a matter of fact the respondent too, should be relieved of the burden of worrying about an appeal that has lost meaning to the appellant; the rules expect that the respondent should apply for th”. PER M. MUSTAPHA, J.C.A.

APPEAL – AN APPEAL DISMISSED ON THE FAILURE TO FILE APPELLANT’S BRIEF OF ARGUMENT IS FINAL AND CANNOT BE REVIVED
“An appeal struck out or dismissed in such circumstances cannot also be relisted under any general rule of this court, or inherent jurisdiction of the court, contrary to the contention of learned counsel to the applicant; this court is fortified in this regard by the authority ofGovernor of Zamfara State & Ors V Gyalange & Ors 2012 LPELR 9715 (SC) where the Supreme Court held this Court:
“….has no inherent jurisdiction to set aside an order of dismissal properly made in the valid exercise of its jurisdiction and to re-enter the appeal. An appeal dismissed on the ground of the failure to file appellant’s brief of argument is final. The appeal so dismissed cannot be revived.” PER M. MUSTAPHA, J.C.A.STATUTE CREATING NEW RIGHTS -WHERE A NEW RIGHT IS CREATED BY A SINGLE STATUTE THE REMEDY FLOWING FROM SUCH RIGHT CAN NEVER BE SEPARATED FROM THE RIGHT
‘‘It is however a settled principle of law that where a statute creates a new right which has no existence apart from the statute creating it, then in the words of Lord Watson inBarraclough V, Brown (1897) AC 622, the right and the remedy are given unoflatu, and one cannot be dissociated from the other.’’ PER M. MUSTAPHA, J.C.A.

RELISTING OF APPEAL – AN APPEAL DISMISSED ON GROUNDS OF NON COMPLIANCE CAN BE RELISTED BY THE COURT OF APPEAL BUT SUCH RELISTING IS NOT APPLICABLE WHERE THE APPEAL WAS STRUCK OUT OR DISMISSED FOR WANT OF DILIGENT PROSECUTION
“The Supreme Court did indeed hold that an appeal dismissed for non compliance with conditions of an appeal, can be relisted, in appropriate cases, See Oyegun V Nzeribe(2010) 7 NWLR part 1194 page 577; but that, with all due respect, does not extend or apply to appeals struck out or dismissed for lack of briefs or non diligent prosecution, as it is the case here; this position of the law was reiterated in Olowu V Abore(1999 )5 NWLR part 293 at 271 to272’’ PER M. MUSTAPHA, J.C.A.

DISMISSAL OF APPEAL – THE COURT CAN DISMISS OR STRIKE OUT AN APPEAL FOR GOOD REASONS EVEN WHERE THERE IS NO APPLICATION FOR DISMISSAL BEFORE IT
‘‘Whether the application was made or not a court intent on dismissing or striking out the appeal would do so any way, for good reason.’’ PER M. MUSTAPHA, J.C.A.

FILING OF BRIEF- IT IS JUST NOT ENOUGH TO FILE ANY BRIEF, IT HAS TO LIVE UP TO ITS BILLING, OTHERWISE IT DOES NOT COUNT
‘‘While it is the position of the law as rightly argued for the applicant that, each case must be decided on the basis of its peculiar facts, it does not matter for this purpose, in the considered opinion of this court, that there was a brief filed or not, as long as the brief filed is not regularized, it is just not enough to file any brief, a brief has to live up to its billing, otherwise it does not count under this Rule.’’ PER M. MUSTAPHA, J.C.A.

RELISTING A DISMISSED APPEAL –NO PROVISION WAS MADE TO RELIST AN APPEAL DISMISSED ON GROUNDS OF FAILURE TO FILE AN APPELLANT’S BRIEF
‘‘It seems to me that there was no intention to give powers to the court to relist an appeal dismissed under Order 6 Rule 10, hence no provisions was made for it. Since Order 3 Rule 20 (3) (A) and Order 3 Rule 25 (2) provided for an appeal dismissed or struck out respectively, the omission to make a similar provision with respect to failure to file Appellant’s Brief inevitably suggests that there was a deliberate omission to make the provision. It is not the function of the court when constructing statutes to supply omissions therein- See Customs V. Barau(1932) 10 S.C. 48.’’ PER M. MUSTAPHA, J.C.A.

Statutes Referred To
Court of Appeal Rules of Court