BISHOP C. A. AJAYI v. MRS. DOLAPO AKINBOBAMI & ORS.
(2011)LCN/4826(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of October, 2011
CA/B/31/2008
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 17 RULE 10 OF THE COURT OF APPEAL RULES 2007 AS REGARDS WHETHER THE COURT OF APPEAL HAS THE JURISDICTION TO RE-LIST AN APPEAL THAT WAS DISMISSED FOR WANT OF PROSECUTION
Order 17; rule 10 of the Court of Appeal Rules provide: “10. Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution.” In the case of Ekpeto v. Wanosho (Supra). the Supreme Court in interpreting Order 6 rule 10 of the Court of Appeal Rules 1981 which is in pari materia with Order 17 Rule 10 2007 Rules, held that the court of appeal lacks the jurisdiction to re-list an appeal dismissed under Order 6 rule 10 as there are no provisions in the Rules giving the court that power. Notwithstanding that Omoleye JCA in the order struck out the appeal for want of diligent prosecution, the striking out is deemed dismissal as provided for in Order 17, rule 10. There being no provision in the Rule giving us the power to relist the appeal, the motion to relist this appeal is hereby refused and is dismissed. PER CHINWE E. IYIZOBA J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
BISHOP C. A. AJAYI Appellant(s)
AND
1. MRS. DOLAPO AKINBOBAMI
2. MICHAEL ILEOLA GOLD
3. AKURE SOUTH LOCAL GOVT. Respondent(s)
CHINWE E. IYIZOBA J.C.A (Delivering the Lead Ruling): This ruling is in respect of an application brought by the appellant/applicant praying this court to inter alia re-list suit No.CA/B/31/2008 struck out by the Honourable court on 30/6/2009. The application is supported by an affidavit of 19 paragraphs deposed to by the applicant.
In opposition to the application the respondents filed 19 paragraph counter affidavit deposed to by a legal practitioner in the chambers of respondent’s counsel. The contention of Mr. Aladedutire counsel for the respondents is that he brought an application for the appeal to be dismissed under Order 17 Rule 10 of the Court of Appeal Rules 2007 for want of diligent prosecution of the appeal. Counsel submitted that the court granted his application but struck out the appeal. He argued that by the relevant rules of court the appeal is deemed dismissed and that this court has no jurisdiction to relist the appeal. Counsel relied on the case of Ekpeto v. Wanosho (2005) All FWLR (Pt.245) 1191 @ 1203-1204 or (2004) 18 NWLR (Pt 905) 394.
Order 17; rule 10 of the Court of Appeal Rules provide:
“10. Where an appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the court, the respondent may apply to the Court for the appeal to be dismissed for want of prosecution.”
In the case of Ekpeto v. Wanosho (Supra). the Supreme Court in interpreting Order 6 rule 10 of the Court of Appeal Rules 1981 which is in pari materia with Order 17 Rule 10 2007 Rules, held that the court of appeal lacks the jurisdiction to re-list an appeal dismissed under Order 6 rule 10 as there are no provisions in the Rules giving the court that power.
Notwithstanding that Omoleye JCA in the order struck out the appeal for want of diligent prosecution, the striking out is deemed dismissal as provided for in Order 17, rule 10. There being no provision in the Rule giving us the power to relist the appeal, the motion to relist this appeal is hereby refused and is dismissed. I make no order as to costs.
MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the ruling of my learned brother, Iyizoba JCA just delivered. I agree entirely with the reasoning and conclusion therein.
The Supreme Court has settled the matter regarding the relisting of an appeal dismissed under Order 6 Rule 10 of the Court of Appeal Rules, 1981 (as amended in 1984) which is in pari material with Order 17 Rule 10 of the Court of Appeal Rules 2007 in the case of KRAUS THOMPSON ORGANISATION Vs. N.I.P.S.S. (2004) 17 NWLR (901) 44 @ 59 E – F per Tobi, JSC as follows:
“An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be relisted. This court held in Babayagi Vs. Bida (supra) that once an appeal is dismissed under Order 6 Rule 10 the Court of Appeal has no jurisdiction to revive the appeal by reentering or re-listing same. See also Chukwuka Vs. Ezulike (1986) 2 NWLR (45) 892.
When an appeal is dismissed under Order 6 Rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No court has jurisdiction to revive or resuscitate it.”
See also per Kalgo, JSC @ 63 – 64 H – B (supra):
“The provisions of Order 6 Rule 10 of the Court of Appeal Rules 1981 as amended, are very clear and needs no further interpretation. It says very clearly that if the appellant fails to file his brief within the time provided by the rules or the time extended by the court for doing so, the respondent may apply to the court for the appeal to be dismissed for want of prosecution. This did not seem to give the court any discretion. Once the respondent applies under the said rule, the appeal must be dismissed and such dismissal is final. See Olowu vs. Abolore (1993) 5 NWLR (Pt. 293) 255; Akunjinwa vs. Nwaonuma (1998) 2 NWLR (Pt.583) 632. In the instant case, the appellant as respondent in the appeal before the Court of Appeal, applied for an order dismissing or striking out the appeal for want of prosecution. Therefore the order striking out the appeal on 2nd June 1989 is in full compliance with the provisions of Order 6 Rule 10 of the Court of Appeal Rules and the “striking out” amounts to a “dismissal” of the appeal. There is no provision for the re-listing of such appeal.”
For these and the fuller reasons set out in the lead ruling, I also dismiss the application. I make no order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the ruling just delivered by my learned brother, IYIZOBA, JCA. I entirely agree with His Lordship that an order striking out an appeal under Order 17 rule 10 of the Court of Appeal, 2007 which is in pari materia with Order 6 rule 10 of the Court of Appeal Rules, 1981 (as amended) is equivalent to an order dismissing the appeal and this Court lacks the jurisdiction to re-list such an appeal. See KRAUS THOMPSON ORGANISATION V. NATIONAL INTITUTE OF POLICY AND STRATEGIC STUDIES (NIPSS) (2004) 17 NWLR (Pt.901) 44 at 63 64, paras. H – B, where the Supreme Court per KALGO, JSC held thus:
“The provisions of Order 6 rule 10 of the Court of Appeal Rules 1981 as amended, are very clear and needs no further interpretation. It says very clearly that if the appellant fails to file his brief within the time provided by the rules or the time extended by the court for doing so, the respondent may apply to the court for the appeal to be dismissed for want of prosecution. This did not seem to give the court any discretion. Once the respondent applies under the said rule, the appeal must be dismissed and such dismissal is final. See Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255; Akunjinwa v. Nwaonuma (1998) 2 NLR (Pt.583) 632. In the instant case, the appellant as respondent in the appeal before the Court of Appeal, applied for an order dismissing or striking out the appeal for want of prosecution. Therefore the order striking out the appeal on the 2nd June, 1989 is in full compliance with the provisions of Order 6 rule 10 of the Court of Appeal Rules and the “striking out” amounts to a “dismissal” of the appeal. There is no provision for the re-listing of such an appeal.”
I agree with my learned brother that the motion to re-list this appeal ought to be dismissed and I too dismiss same.
I abide with the order as to costs.
Appearances
A. S. Adedokun EsqFor Appellant
AND
K. AladedutireFor Respondent
