Governor Of Zamfara State & Ors. V. Alh. Suleiman Mohammed Gylang & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AHMAD O. BELGORE J.C.A. (Delivering the Leading Ruling)

By a notice of motion, filed by the respondents herein on the 29th day of February, 2008, this Court was moved on the 11th day of June, 2009 to dismiss the appeal filed by the appellants on the ground of want of diligent prosecution under Order 17, rule 10 of the Court of Appeal Rules, 2007. The motion was granted as prayed and the appeal was accordingly dismissed.

The appellants, by their learned counsel have now brought a motion praying inter alia for-

1. An order re-listing or restoring appeal No. CA/S/95/09 struck out by this honourable court (sic) on 11th June, 2009 for want of diligent prosecution, and
2. Subject to (1) above, an order granting the Appellants/Applicants extension of time within which to file their Appellants’ brief of Argument.

The grounds upon which the application has been brought are stated in the motion and is supported by a 3 – point affidavit stating the reasons for delay in filing Appellants’ brief of Argument. The reasons are copiously stated in paragraph 2(1) to (x) of the affidavit in support of the motion. In paragraph 2 (xi), (xii) and (xiii) it is deposed as follows:-

“(xi) That the failure to file the appellants/applicants’ brief of argument was not deliberate.

(xii) That the appellants/applicants are desirous of prosecuting the said appeal and undertake to do so without further delay, subject to leave being granted.

(xiii) That since receiving the said records of appeal counsel has immediately set himself earnestly to the task of preparing the appellants/Applicants’ brief of argument and would be ready for filing within twenty four hour of the determination of this application in the event the appeal is re-listed and extension of time granted.

The respondents caused a counter-affidavit to be filed in opposition to the motion. It is a 5 – paragraph counter-affidavit stating the reason why the application should not be granted. It is emphasized in paragraph 4 (c) of this counter-affidavit that it was the appeal that was dismissed pursuant to Order 17, rule 10 of the Rules of the Court and that it was not the Notice of appeal that was struck out. It is also deposed in paragraph 4 (f) (g) and (h) as follows:-

“(f) That the applicants were served with the Record of proceedings on the 21st day of November, 2007 before same was transmitted to this Court.

(g) That the Court of appeal, as a matter of practice does not receive Record of Proceedings except same had been served on the parties with proof of service,

(h) That the proof of service on the applicants is with the Registry of this Court.”

When this motion came up for hearing on the 2nd day of July, 2009, counsel on both sides were directed to file written addresses. Written addresses have been filed and exchanged. The applicants have also filed a written reply on points of law.

The applicants formulated three issues for determination, namely –

(a) Whether or not the Court of Appeal has jurisdiction to relist or restore Appeal No.CA/S/95/2009 after same was dismissed for want of diligent prosecution under Order 17, rule 10 of the Court of Appeal Rules, 2007