Zamfara State Environmental Sanitation Agency (Z.E.S.A) v. Alhaji Bashir Adamu (Carrying On Business In The Name & Style Of Ocean Trees Enterprises) (2025)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMED LAWAL SHUAIBU, JCA (Delivering the leading ruling)

Pursuant to the provisions of sections 6 and 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 15 of the Court Appeal Act, Cap 136 Laws of the Federation of Nigeria, 2004, order 6 rules 1, 9(1) and (2) of the Court of Appeal Rules, 2021 and inherent jurisdiction of this honourable court, the applicant prayed this court for the following orders:

1. An order for extension of time within which to seek leave to restore appeal No. CA/S/72/2022, delivered on the 12th of March, 2024, which was dismissed upon failure of the appellant to file brief of argument within time.
2. An order of this honourable court, setting aside the decision of this court delivered on the 12th of March, 2024 dismissing appeal No. CA/S/72/2022 for failure of the appellant to file brief of argument within time.
3. An order of this honourable court restoring appeal No. CA/S/72/2022 to cause list, which was dismissed on the 12th March, 2024 upon failure of the appellant to file brief of argument within time.
4. An order of this honourable court extending time within which the appellant/applicant can file its brief of argument in appeal No. CA/S/72/2022.
5. And such further order or orders as this honourable court may deem fit to make in the circumstances.

In support of the said application, is an affidavit of 18 paragraphs deposed to by one Musa Abdullahi, Litigation Secretary in the Ministry of Justice, Gusau, Zamfara State. And in compliance with order 6 rule 1 of the rules of this court, the application is accompanied by a written address.

In opposition, the respondent also filed a written address on 30/1/2025. At the hearing of the application on 30/1/2025, learned counsel for the applicant, U. Y. Abdulkarim, Esq, Assistant Director, Ministry of Justice, Zamfara State adopted and relied on his written address in urging the court to grant the prayers contained therein.

Abubakar Mohammed, Esq, learned counsel for the respondent also adopted the respondents written address to urge the court to dismiss the application. In the applicant’s written address, counsel crafted a sole issue for determination which was ostensibly adopted by the respondent. The sole issue read as follows:

Whether the applicant had given cogent reason(s) to justify the exercise of their Lordships discretion in its favour.

Proffering argument in support of the appellants position, learned counsel contended, relying on the averments in paragraphs 4, 5, 6, 10, 15 of supporting affidavit, that the failure to file the appellants brief of argument, leading to striking out/dismissal of the appeal in appeal No. CA/S/72/2022 is a failure of the appellants counsel to draw the courts attention of the pending application to amend its notice of appeal as well as appellants brief and hence the fault of counsel should not be visited on the litigant.

He contend further that prior to 13th March, 2024 when the appellants pending application to amend the notice of appeal was expected to be heard, neither the lead counsel not U. Y. Abdulkarim was served with hearing notice.

Counsel submit that these constitutes a special circumstance for the grant of the application, relying on Adebiyi v. Adekanbi (2018) 16 NWLR (Pt. 1645) 242 and Elias v. Eco Bank Nig. Plc (2016) 22 WRN 28.

He submits further that the failure to serve the appellant with a hearing notice against the 13th day of March, 2024 robbed the court of its jurisdiction to hear the appeal.

The respondents contention on the other hand is that, by order 19 rules 2 and 10 of the Court of Appeal Rules, 2021, the appellant has 45 days after transmission of record of appeal to file its brief of argument and in the event of failure to do so, rule 10 permits the court to either by the application of the respondent or even suo motu, dismiss the appeal.

Counsel submit that the rules of court does not permit the appellants application as the consequence of dismissal of the appeal is a final decision.

It was contended further that the appellants unwillingness to prosecute its appeal that led to its dismissal and as usual, has only file this application some 9 months after praying to set aside the decision of this court.

Counsel submit that there is nothing left for the applicant in this court as there is nothing to show that the order of this court dismissing the appeal was obtained by fraud or deceit.