BARR. KELECHI ONYEKWERE v. ENGR. TELE IKURU & ORS.
(2008)LCN/2961(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of November, 2008
CA/PH/EPT/96/2008
JUSTICES
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
Between
BARR. KELECHI ONYEKWERE Appellant(s)
AND
ENGR. TELE IKURU & ORS. Respondent(s)
RATIO
WHETHER OR NOT THE COURT HAS A DUTY TO DISPOSE OF AN APPLICATION WHOSE FATE HAS BEEN DECIDED BY THE APPLICANT
In view of the foregoing, it is crystal clear that the learned counsel for the appellant/applicant has indicated that he is no longer interested in moving his motion. Since the Court is not a custodian of stale applications, it has a bounden duty to dispose of such an application whose fate had been decided by the applicant. The application is accordingly struck out for want of prosecution.
As regards the substantive appeal, it will be recalled that the learned counsel for the appellant declared that the prosecution of the appeal would amount to an academic and/or suicidal exercise. This is a strong expression and it is self defeatist. The law on this type of approach to legal proceedings is settled that it amounts to an abandonment or a withdrawal of his appeal on which no valuable time should be expended. We are guided by Order 11 rule 5 of the Court of Appeal Rules, 2007 which states what the Court should do in such circumstances. The said Order 11 rule 5 reads:
“11. ……….
5. An appeal which has been withdrawn under this Rule whether with or without an order of the court shall be deemed to have been dismissed.” PER IBIYEYE, J.C.A.
SAKA ADEYEMI IBIYEYE, J.C.A. (Delivering the Leading Judgment): The antecedent of the appeal is that on 21/10/08 it was adjourned to today for definite hearing. The said day has arrived and some five days before today, the appellant filed an application to seek three reliefs which are:
“1. An order granting leave of the court to the appellant/applicant to amend the notice of appeal on pages 564 to 572 of the record of appeal by substituting thereof another notice of appeal;
2. An order that the amended exhibited notice of appeal be deemed as properly filed and served;
3. And for such further order this Honourable Court may deem fit to make it the circumstances. (sic).
The application is supported by a 13 paragraph affidavit. It is important to note that the learned counsel for the appellant/applicant at the last adjournment on 21/10/2008 sought and got leave of this court to strike out the names of the 1st and 6th respondents. It is for ease of reference that the Court retained the numbering of the respondents as 2nd, 3rd, 4th and 5th respondents.
In proffering arguments for the application in point, the learned counsel for the appellant/applicant submitted, inter alia,
“I am not willing to proceed with the application because most of the issues involved in my appeal have been decided in similar appeals…”
The learned counsel for the appellant/applicant went further to say, inter alia,
“If I continue with my appeal it would be suicidal an academic exercise or exercise in futility.”
Based on the foregoing submissions, the learned senior counsel for the 2nd and 5th respondents, Prince L.O. Fagbemi, urged the Court to strike out the application for want of prosecution.
J. Elumeze Esq, the learned counsel for the 3rd and 4th respondents, associated himself with the submissions of the learned senior counsel for 2nd and 5th respondents.
In view of the foregoing, it is crystal clear that the learned counsel for the appellant/applicant has indicated that he is no longer interested in moving his motion. Since the Court is not a custodian of stale applications, it has a bounden duty to dispose of such an application whose fate had been decided by the applicant. The application is accordingly struck out for want of prosecution.
As regards the substantive appeal, it will be recalled that the learned counsel for the appellant declared that the prosecution of the appeal would amount to an academic and/or suicidal exercise. This is a strong expression and it is self defeatist. The law on this type of approach to legal proceedings is settled that it amounts to an abandonment or a withdrawal of his appeal on which no valuable time should be expended. We are guided by Order 11 rule 5 of the Court of Appeal Rules, 2007 which states what the Court should do in such circumstances. The said Order 11 rule 5 reads:
“11. ……….
5. An appeal which has been withdrawn under this Rule whether with or without an order of the court shall be deemed to have been dismissed.”
I am not unmindful that the learned counsel in this application did not refer the court to the application and/or invocation of order 11 rule 5 of the court of Appear Rules, 2007, we are, however, of the view that the circumstances of the arguments for the learned counsel in this appeal and particularly those of the learned counsel for the appellant/applicant come within the scope of operation of the above quoted provisions of the court of Appeal Rules 2007. I therefore invoke the said provisions and hold that the instant notice and grounds of appeal dated 11/2/08 and filed on 12/2/08 are caught by the sanction in that provision and it is accordingly more so since the brief of argument of the parties had been filed and exchanged.
In retrospect, both the application and the appeal are respectively struck out and dismissed. There is no order as to costs.
CLARA BATA OGUNBIYI, J.C.A.: I agree
PAUL ADAMU GALINJE, J.C.A.: I agree
OLUKAYODE ARIWOOLA, J.C.A.: I agree
GEORGE OLADEINDE SHOREMI, J.C.A.: I agree.
Appearances
Barr. Kclechi Onyekwere in personFor Appellant
AND
Prince L. O. Fagbemi, SAN with K.O. Fagbemi Esq, I. Wodi Esq and E. O. Kalu Esq
J. Elumeze Esq with Miss N.F. Odimiri-Gaffar & Mrs. E. S. PeppleFor Respondent
