Bishop C. A. Ajayi V. Mrs. Dolapo Akinbobami & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.

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Other Citation: (2011)LCN/4826(CA)

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