Hon. Fattma Rasaki Vs. Oladimeji Lateef Ajijola (2017)
LAWGLOBAL HUB Lead Judgment Report
Paul Adamu Galinje, JSC
I have had the privilege of reading in draft, the judgment just delivered by my learned brother AMIRU SANUSI JSC and entirely I agree with the reasoning contained therein and the conclusion arrived thereat.
From the proceedings of the lower court at pages 626 — 628 of the Record of Appeal, it is the amended cross appellants brief of argument that was not filed within the seven days extension granted by the lower court.
To that extent the amended brief of argument was incompetent, and same could not be made competent by reason of the fresh steps taken to file the cross respondents brief of argument by the cross respondents, as provided by Order 20 Rule 5 of the Court of Appeal Rules 2011.
The striking out of an amended brief of argument on the ground that it was filed within the time extended by the court and therefore incompetent, does not render the original brief of argument incompetent as same is still a brief in the appeal. Even where the appellant fails to file a brief of argument within the prescribed period or within the time extended, it is not mandatory for the court to dismiss the appeal.
Order 18 Rule 10 provides:-
“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….”
A dismissal of appeal under this order is at the discretion of the court seized with the case, and the lower court in this case elected not to dismiss the appeal before it.
Learned counsel cannot fault the ruling in appeal no. CA/EK/51 /2015 and at the same time argue that the lower court was wrong in not following that decision in appeal no. CA/EK/56/2015. He cannot approbate and reprobate at the same time. The court has absolute discretion to dismiss or not to dismiss an appeal where an appellant fails to file a brief within the prescribed period.
For these few words and the more detailed reasoning in the lead judgment, I find no merit in this appeal. Accordingly same shall be and it is accordingly dismissed. I endorse all the consequential orders made in the lead judgment including order as to costs.