KASHIM v. STATE
(2022)LCN/5058(SC)
In The Supreme Court
On Friday, May 27, 2022
SC.573C/2017
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
BABA GANA KASHIM APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
WHERE AN APPELLANT FAILS TO FILE HIS BRIEF WITHIN 45DAYS
The first reason is that Order 18 Rule 10 (1) Court of Appeal Rules 2011 (Order 19 Rule 10 (1) Court of Appeal Rules 2016), provides that where an appellant fails to file his brief within 45 days within the time provided in Rule 2 of Order 19 therein, or within the time as extended by the Court, the respondent can apply for the dismissal of the appeal or the Court may sou motu dismiss the appeal for want of prosecution. So Order 18 Rule 10 (2) of 2011 Rules that gives the Court of Appeal the power to dispose of the appeal in such situation prescribes the order it can make as one of dismissal. -PER EMMANUEL AKOMAYE AGIM, J.S.C.
JURISDICTION OF THE COURT OF APPEAL TO REVISIT ITS DECISION
The law is settled by a long line of decisions of this Court that the Court of appeal lacks the jurisdiction to revisit or vary its decision dismissing an appeal before it for want of prosecution consequent upon failure to file appellant’s brief except where the decision was made without the Court being made aware that a brief had been filed or that an application for extension of time to file appellant’s brief had been filed before the date the appeal was dismissed. An application for extension of time to file brief filed in the morning of the day the appeal was dismissed, that was not brought to the attention of that Court cannot operate to enable that Court revisit or vary its dismissal of the appeal or relist the appeal after dismissal. In Asalu V Dakan and Ors (2006) SC (Pt.111) 120 this Court restated thusly “This Court has in a number of cases held that an appeal dismissed by the Court of Appeal for failure to file appellant’s brief is final and that such an appeal cannot be revived by the Court of Appeal. See Olowu V Abolore (1993) 5 Nigerian Weekly Law Report (Pt.293) 255, Babayagi V Bida (1998) 1-2 SC 108 (1998) 7 Nigeria Weekly Law Report (Pt.538) 367” see also Ekpeto V Wanogho (2004)20 NSCQR 333 at 344. – PER EMMANUEL AKOMAYE AGIM, J.S.C.
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): The appellant was charged with and tried for the offence of culpable homicide punishable with death in the Borno State High Court sitting at Maiduguri in charge No BOHC/MG/CR/23/14. Following the conclusion of evidence and addresses, the trial Court rendered its judgment on 11-12-2014, convicted the appellant and sentenced him to death. Dissatisfied with this judgment, the appellant on 8-2-2015 filed a notice of appeal against it on the sole ground that the decision of the High Court is unreasonable and cannot be supported having regard to the evidence.
Appeal No. CA/J/60C/2015 commenced by the filing of the said Notice of Appeal was entered in the Court of Appeal on 8-5-2015.
On 16-6-2016, the Court of Appeal dismissed the appeal for want of prosecution consequent upon the appellant’s failure to file appellant’s brief within 45 days from the service of the record of appeal on him as prescribed by the then applicable Order 18 Rule 2 Court of Appeal Rules 2011. The short ruling of the Court of Appeal reads thusly “The record of Appeal was entered before the Court on 08-05-2015. By virtue of Order 18 Rule 2 of the Court of Appeal Rules, 2011, appellant has 45 days within which to file his brief of argument. There is no Brief of Argument filed by the appellant and no application before us seeking to regularize same. Since appellant is aware of today’s hearing, we would take it that he is no longer desirous in prosecuting this appeal. Consequently, we would invoke Order 18 Rule 10(2) of the Court of Appeal Rules, 2011 and dismiss the appeal for want of prosecution.”
By a motion on notice filed on 21-6-2016, the appellant applied for an order setting aside the decision dismissing his said appeal and an order relisting same to the cause list of the Court for hearing. The Court of Appeal on 30-3-2017 dismissed the application on the ground that it has no power to relist an appeal it has dismissed for want of prosecution consequent upon the appellant’s failure to file appellant’s brief and in the absence of an application for extension of time to file appellant’s brief. Dissatisfied with this decision, the appellant on 12-4-2017 filed a notice of appeal commencing this appeal No. SC.573/2017 against the decision to this Court.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief and respondent’s brief.
The appellant’s brief raised one issue for determination as follows – “whether or not the Court below was right when it refused to set aside its order dismissing the appellant’s appeal and relist same for the purpose of making the necessary application to enable the appellant’s appeal be heard on the merit.”
The respondent’s brief also raised one issue for determination as follows – “whether having regard to the facts and circumstances of this case, the lower Court properly exercised its discretion by refusing to set aside its order dismissing the appellant’s appeal and to relist the appeal for hearing.”
The issues raised for determination in the two briefs are in substance the same. Let me determine this appeal on the basis of the issue as couched in the appellant’s brief.
I have carefully read and considered all the arguments in the respective briefs on this issue.
The argument of learned Counsel for the appellant that the Court of appeal should have struck out and not dismiss the appeal because the appeal is incompetent is not valid for consideration in this appeal against the refusal of the Court of Appeal to set aside its dismissal of the appeal.
The first reason is that Order 18 Rule 10 (1) Court of Appeal Rules 2011 (Order 19 Rule 10 (1) Court of Appeal Rules 2016), provides that where an appellant fails to file his brief within 45 days within the time provided in Rule 2 of Order 19 therein, or within the time as extended by the Court, the respondent can apply for the dismissal of the appeal or the Court may sou motu dismiss the appeal for want of prosecution. So Order 18 Rule 10 (2) of 2011 Rules that gives the Court of Appeal the power to dispose of the appeal in such situation prescribes the order it can make as one of dismissal.
Secondly, the appeal was dismissed for want of prosecution consequent upon failure to file appellant’s brief and not for want of competence of the appeal. The competence of the appeal was not even questioned and was not an issue that was determined by the Court. If the Court of Appeal had determined that the appeal was incompetent, it would have struck it out. But that did not matter before that Court. The argument that it should have struck out an appeal that the Court had adjudged to be wanting in prosecution for failure to file respondent’s brief is contrary to Order 18 Rule 10 (1) and (2) of the 2011 Rules.
Thirdly, the law is settled by a long line of decisions of this Court that the Court of appeal lacks the jurisdiction to revisit or vary its decision dismissing an appeal before it for want of prosecution consequent upon failure to file appellant’s brief except where the decision was made without the Court being made aware that a brief had been filed or that an application for extension of time to file appellant’s brief had been filed before the date the appeal was dismissed. An application for extension of time to file brief filed in the morning of the day the appeal was dismissed, that was not brought to the attention of that Court cannot operate to enable that Court revisit or vary its dismissal of the appeal or relist the appeal after dismissal. In Asalu V Dakan and Ors (2006) SC (Pt.111) 120 this Court restated thusly “This Court has in a number of cases held that an appeal dismissed by the Court of Appeal for failure to file appellant’s brief is final and that such an appeal cannot be revived by the Court of Appeal. See Olowu V Abolore (1993) 5 Nigerian Weekly Law Report (Pt.293) 255, Babayagi V Bida (1998) 1-2 SC 108 (1998) 7 Nigeria Weekly Law Report (Pt.538) 367” see also Ekpeto V Wanogho (2004)20 NSCQR 333 at 344.
The argument of learned Counsel for the appellant that it was the former Counsel to the appellant that was served the notice of appeal that present Counsel was not served, that he was sick and was abroad for medical attention, that his secretary hurriedly sent an application for adjournment of the appeal but got a wrong appeal number CA/J/60c/2015 instead of CA/J/177c/2016 are irrelevant since the Court of Appeal has no jurisdiction to relist the dismissed appeal or revisit or vary its decision dismissing the appeal for want of prosecution due to failure to file appellant’s brief.
In the light of the foregoing, the sole issue for determination is resolved against the appellant.
On the whole, this appeal fails as it lacks merit.
It is accordingly dismissed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft, the lead judgment of my learned brother Agim, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserves to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.
UWANI MUSA ABBA AJI, J.S.C.: I was before now given a draft of the judgment just delivered by my learned brother, Emmanuel Agim, JSC, and I agree unreservedly to his reasoning and conclusion that the appeal be dismissed.
The appellant seeks before this Court “whether or not the Court below was right when it refused to set aside its order dismissing the appellant’s appeal and relist same for the purpose of making the necessary application to enable the appellant’s appeal be heard on the merit.”
It must be noted that the appellant’s appeal was dismissed for want of diligent prosecution for failure to file appellant’s brief. He however now wants this Court to consider whether the lower Court did not err to refuse to set it aside.
This Court, considered whether an appeal dismissed under the Court of Appeal Rules for failure of the appellant to file brief of argument can be relisted, and concluded inter alia that it is clear that the appeal of the appellants was dismissed pursuant to Order 6 Rule 10 of the Court of Appeal Rules for failure to file the brief of argument within the prescribed time and there was no application for extension of time to file the said brief out of time. The appeal was therefore properly dismissed and the dismissal order is final and irreversible. The Court below no longer had competence or jurisdiction on the appeal that had become spent by the order of dismissal. The Court below had become functus officio on the matter. It can neither set aside its order nor relist the already dismissed appeal. It is no longer on the cause list of the Court. See Per Ariwoola, JSC, in A-G., OF THE FEDERATION & ORS V. PUNCH (NIG.) LTD. & ANOR (2019) LPELR-47868(SC), Per ABBA AJI, J.S.C, in MMUODILI & ORS V. ONWUBA & ORS (2020) LPELR-55917(SC) (PP. 10-14 PARAS. F).
This appeal lacks merit and is hereby dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: The sole and simple issue for decision in this appeal has been ably considered and resolved in the lead judgment written by my learned brother, E. A. Agim, JSC, a draft of which I read.
The law is now common knowledge in both the Court below and this Court that an appeal dismissed by the Court below for want of diligent prosecution on ground of failure by an Appellant to file the Appellant’s Brief either within the time prescribed by the Rules of that Court or as might have been extended, cannot be relisted by both Courts. See Olowu v. Abolore(1993) 3 NWLR (pt. 293) 255, Dakan v. Asalu (2015) All FWLR (pt. 799) 1055, (2015) 13 NWLR (pt. 1475) 47, FBN, Plc. v. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 24247, Obiora v. Osele (1989) 1 NWLR (pt. 97) 279, Yonwuren v. Modern & Sons Nig. Ltd. (1985) 1 NWLR (pt. 2) 244, Kraus Thompson Org. v. N.I.P.S.S. (2004) 17 NWLR (pt. 961) 44.
I join in dismissing the appeal in terms of the lead judgment.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have hitherto read the lead judgment just delivered by my learned brother EMMANUEL AKOMAYE AGIM, JSC. I agree with his lordship’s reasoning and conclusion that the appeal is without merit and should be dismissed. I will add a few words for emphasis.
The appellant herein was convicted and sentenced to death pursuant to a charge filed against him under Section 221 of the Penal Code Law Cap 102 Laws of Borno State 1994 by the trial High Court of Borno State. Aggrieved by the judgment of the trial High Court he appealed to the Court of Appeal Jos in appeal No. CA/J/600/2015 and the record in respect of the appeal was transmitted on 8th May 2015 from the trial High Court to the Court below.
When the appeal came up for hearing on 16th June 2016 more than one year after the record was transmitted by the trial Court to the Court below) the appellant through his counsel purported to have written a letter seeking for an adjournment. However, the letter was not brought to the attention of the Court below as it bore a wrong appeal number No. CA/J/160C/2015 instead of CA/J/60C/2015.
The Court below invoked Order 18 Rule 10 of the rules of Court and dismissed the appeal for failure to file brief of argument within time as stipulated by the rules of Court and the time within which to file the brief of argument by the appellant had lapsed. There was no application for enlargement of time before the Court on the said date by the appellant to file the brief argument out of time.
The appellant aggrieved by the decision of the Court below in dismissing his appeal for want of prosecution filed a motion on notice dated 20th June 2016 and filed on 21st June 2016 to set aside the ruling of the Court below dismissing his appeal and to relist the appeal No. CA/J/60C/2015.
The Appellant sought the following orders of the Court below:
(a) An order setting aside the order of this Honourable Court delivered on 16th June 2016 dismissing appeal No. CA/J/60C/2015 – Baba Gana Kashim vs. the State.
(b) An order relisting appeal No. CA/J//60C/2015 Baba Gana Kashim vs. The State.
(c) And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.
On 30th March 2017 the Court below delivered its well considered ruling and dismissed the applicant’s motion as lacking in merit.
Aggrieved by the ruling the applicant who is now the appellant has approached this Honourable Court with 4 grounds of appeal filed on 12th April, 2017.
The issue as identified for determination by both parties is –
whether or not the Court below was right when it refused to set aside its order dismissing the Appellant’s appeal and relist same for the purpose of making the necessary application to enable the appellant’s appeal be heard on the merit.
Really, the issue here is whether the Court below or even this Court has the jurisdiction to relist a criminal appeal dismissed for lack of diligent prosecution pursuant to Order 18 Rule 10 (1) of the Court of Appeal Rules 2011 which is the applicable rule in this case.
The consequence of failure to obey Order 18 Rule 10 (1) is stated in Order 18 Rule 10 (2) which said order provides that the appeal can be dismissed summarily by the Court. Order 10 Rule 2 of the 2011 Rules states as follows:
2. The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.
Order 18 Rule 10 (1) and (2) provides as follows:
18(10) (1) Where an Appellant fails to file his brief within the time provided for in Rules 2 of this order, or within as extended by the Court, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. If the Respondent fails his brief, he will not be heard in oral argument. Where an appellant fails to file his brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent s brief.
18(10) (2) 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 Court may suo motu dismiss the appeal for want of prosecution.
In Kraus Thompson Organisation v National Institute for Strategic Studies (NIPSS) (2004) 17 NWLR Pt.901 pg.44 cited by Respondent’s counsel also reported in (2004) 5 SCNJ 71, the Supreme Court interpreted Order 6 Rule 10 of the Court of Appeal Rules 1984 which provision is in pari materia with Order 18 Rule 10 of the 2011 Rules.
The Supreme Court held that on wordings of the said rule, even though sympathy was expressed for an appellant who would be shut out of the adjudicatory process, the apex Court had no choice but to dismiss the appeal. The Court held that:
1. It is clear from Order 6 Rule 10 of the Court of Appeal Rules that failure on the part of an appellant to file his brief within time will be visited with the sanction of dismissal of the appeal on the application of the respondent. The failure to file a brief by an appellant within the prescribed or extended time can be likened to an abandonment of his appeal particularly when such failure is coupled with non-appearance in Court without excuse at the time of hearing.
2. Under Order 6 Rule 10 of the Court of Appeal (Amendment) Rules 1984 an appeal could be dismissed for failure of the appellant to file his brief within the time provided for in Rule 2 thereof or within the time as extended by the Court, or for non-compliance with the conditions of appeal, or for want of prosecution.
3. An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules can not be relisted. Once an appeal is dismissed under Order 6 Rule 10, the Court of Appeal has no jurisdiction to revive the appeal by re-entering or re-listing same.
In Asalu v Dakan (2006) 5 SCNJ 377, the Supreme Court quoted with approval the concurrent opinion of Belgore JSC (as he then was) in Kraus Thompson v. NIPSS supra to the effect that once the Court of Appeal has dismissed the appeal for want of prosecution due to the appellant’s failure to file his brief of argument, the Court is funtus officio in the matter and cannot restore or relist the appeal. The Supreme Court was emphatic that neither that Court nor this Court was imbued with requisite jurisdiction to restore an appeal dismissed pursuant to Order 6 Rule 10 now being interpreted in Order 18 Rule 10 of the Court of Appeal Rules 2011.
In the circumstances, in spite of the facts of this case, which is a criminal appeal with the sanction being the death penalty, I have to agree that this Court is bound by the rule of stare decisis to continue to interpret the rule very strictly as it has been done in the past.
This has been the position as far back as 1981 when Obaseki JSC held inOgbu v Urum (1981) 4 SC 1 as follows:
“…The provision of Order 7 Rule 30 (of the Supreme Court Rules 1977) deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this Court under Section 6 (6) (a) of the Constitution cannot be invoked to save the situation. This Court is therefore unable and incompetent to entertain this application to direct that the appeal be re-entered. Sympathy cannot override the clear provisions of our Rules and it would be in the interest of all parties if parties and their counsel endeavour to keep to the times set out in the Rules for the doing of any act or taking of any step.”
In Kraus Thompson v NIPSS supra and the later case of Asalu v Dakan supra almost all the Supreme Court Justices expressed sympathy for an appellant where an appeal would be dismissed due to the harshness of that order. The Supreme Court had relied on a plethora of previous authorities on this point. Viz Ogbu v Urum (1981) 4 SC 1; Babayagi v Alh Bida (1988) 2 NWLR Pt. 538 pg. 367; Nneji v Chuckwu (1988) 3 NWLR Pt. 81 pg. 184, Nwugha v Nwala (1992) 2 NWLR Pt. 225 pg. 610; Olowu v Abolore (1993) 5 NWLR Pt. 293 pg. 255; Onuwajuru v Akanihu (1994) 3 NWLR Pt. 334 pg. 620; The State v Nnolim (1994) 5 NWLR Pt. 345 pg. 394; Olumesan v Ogundepo (1996) 2 NWLR Pt. 433 pg. 628; Chime v Ude (1996) 7 NWLR Pt. 461 pg. 379 to insist that the apex Court was not at liberty to relist the appeal.
Both Niki Tobi JSC and M.L. Uwais CJN commended Order 6 Rule 9 of the 1985 Supreme Court Rules which stipulates the consequence of a strike out rather than a dismissal of an appeal where the brief was not filed within time. Uwais CJN observed that the Supreme Court has to depart from the harshness of the 1977 and 1985 Supreme Court Rules in this regard.
It is apparent that the 2011 Rules have retained the strictness or be it “harshness” of the 1984 Rules interpreted in Kraus Thompson v NIPSS etc. The rules have even gone a step further to stipulate that this Court can suo motu dismiss the appeal for want of prosecution on the basis of failure to file appellant’s brief within time.
It is important to note that by the rules of the Court of Appeal the Court can strike out or dismiss a suit for want of diligent prosecution depending on the circumstances of the case. In such a case, the rules allow that the appeal can be re-listed. However, when the appeal is dismissed for failure to file Appellant’s brief, the appeal cannot be re-listed. The decision law has been consistent and implacable on that. The implacability in this case has the result of shutting out the Appellant in a criminal trial who is facing the death penalty. It is applicable because Order 18 Rule 1 is made applicable to all appeals. I strongly recommend an amendment to the rules of the Court of Appeal that excludes appellants facing the death penalty in criminal trials from the applicability of the implacable rule. This is because most criminal trials and appeals are prosecuted pro bono and counsel tend to take their time doing the needful.
For the above reasons and in agreement with my learned brother, I have to dismiss the appeal. Appeal dismissed.
Appearances:
A.A SANGEI, ESQ., WITH HIM, A. L MUHAMMED, ESQ., S. Y. MANGAI, ESQ., M. U. MUHAMMED, ESQ. AND ARDO BUBA SSC, MOJ, BORNO STATE For Appellant(s)
…For Respondent(s)
