Decision of an appellate court

• Pages: 491-491

491

the relevant provision of Order 3 rule 20 (1). (3), (4), order 3 rule 25 sub-rules (1),

(2) and Order 6 rules 2 and 10.” Order 3 rule 20 (1) provides as follows: - ‘lf the

appellant has complied with none of the requirements of rules 10 and11 of this order,

the registrar of the Court below shall certify such fact to the Court, which shall there

upon order that the appeal be dismissed either with or without costs, and shall cause

the appellant and respondent to be notified of the terms of its order.’ Order 3 rule 20

(3) If the respondent alleges that the appellant has failed to comply with a part of the

requirements of rules 2, 10 or 11 of this order, the Court, if satisfied that the appellant

has so failed, may dismiss the appeal for want of due prosecution or make such

order as the justice of the case may require. (4) An appellant whose appeal has been

dismissed under this rule may apply by notice of motion that his appeal be restored.

Any such application may be made to the Court and the Court may in its discretion

for good and sufficient cause order that such appeal be restored upon such terms as

it may think fit.” – Per Onu, J.C.A., in Akujinwa v. Nwaonuma Suit No. S.C. 27/

1991; (1998) 13 N.W.L.R. (Pt. 583) 632 at 648.

(2) “In Olowu and others v. Abolore and Another (1993) 5 N.W.L.R. (Pt. 293)

225, the Supreme Court held that the Court of Appeal Rules give the Court of Appeal

the power to dismiss an appeal in the following circumstances, viz: (a) When there

is non-compliance on the appellant’s part with the conditions of appeal. This is by

virtue of Order 3 rule 20(1). (b) When the appellant fails to appear when his appeal

is called for hearing. (c) When the appellant fails to file his brief of argument within

the time provided in Order 6 rule 2 or within the time extended by Court to do so.

This is by virtue of Order 6 rule 10. See also Onumajuru v. Akanihu and Others

(1994) 3 N.W.L.R. (Pt. 334) 623. The obvious should be stated that an appeal which

is not meritorious will be dismissed.” - Per Tobi, J.C.A., in Ume v. Nigeria Renowed

Trad. Co. Ltd. Suit No. CA/E/89M1/96; (1997) 8 N.W.L.R (Pt. 516) 344 at 353.

916. Court of Appeal’s duty to ensure service of hearing notice on an appellant

before dismissing an appeal for lack of diligent prosecution.

(1) “The hearing notice issued on 9/9/93 was meant to re fix the appeal for and to

supersede the 13/9/93 date. There was no proceeding in the appeal on 13/9/93, as it

did not come up on that day. The learned Justices of the Court below owed it as their

duty to examine the Court record as to whether the appellants were served with

hearing notice but deliberately absented themselves, including their counsel from

Court, and did not take the opportunity of being heard. In those circumstances, can

it be said that the appellants were given a fair hearing in the instant case here on

appeal? I take the firm view that the appellants were not given a fair hearing. In

Alhaji Chief Yekini Otapo v. Chief R.O. Sunmonu & Ors. (supra) Obaseki, J.S.C.,

in answering a similar question said.” - Per Onu, J.S.C., in Ogundoyin v. Adeyemi

Suit No. S.C. 123/1996; (2001) 33 W.R.N.1 at 15; (2001) 13 N.W.L.R. (Pt. 730)

403 at 422 - 423.

487 Dismissal of appeal Paras. 915-916