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.
Application not granted
Issues for Determination
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.
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