Dismissal of appeal

• Pages: 490-498

490

(55) DISMISSAL OF APPEAL

913. Appeal dismissed on ground of failure to file appellant’s brief of argument

is final.

“By virtue of Order 6 rule 10 of the Court of Appeal Rules, where an appellant fails

to file his brief within the time provided for in Order 6 rule 2 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. An appeal can therefore only be dismissed for

want of hearing under Order 6 rule 10 when and only when a respondent applies to

the Court seeking for the order. On distinction between dismissal of appeal for non-

compliance or non-appearance and dismissal for non-filing of appellant’s brief.

……Whereas there are provisions, for an appeal dismissed under the first two

instances to be relisted, there is no provision in Order 6 enabling relisting an appeal

dismissed for failure to file appellant’s brief of argument under Order 6 rule 10.

Therefore, an appeal dismissed on the ground of the failure to file appellant’s brief of

argument is final. The appeal so dismissed cannot be revived.” - Per Akpabio, J.C.A.,

in Tsokwa v. U.T.C. (Nig.) Ltd. Suit No. CA/J/339M/99; (2000) 7 N.W.L.R. (Pt.

666) 654 at 661.

914. Application by respondent before dismissal of appeal by Court under

Order 6 rule 10 of Court of Appeal Rules as amended.

“A reading of the provisions of Order 6 rule 10 (ibid) will indicate that the application

by the respondents is permissive and not mandatory before the appeal is dismissed

by the Court for want of prosecution. In other words, that the dismissal for want of

prosecution was not on the merits leaving the order to be invoked to that of a striking

out and not that of a dismissal. Any other interpretation would indeed leave the

discretion for dismissal of an appeal in the hands of the litigants and not the Court

thus tying the hands of the Court helplessly with a Gordian knot by the litigants. That

would, in my humble view, make nonsense of the discretion to dismiss or not to

dismiss by confining such an exercise to the respondent and no more.” – Per Omo,

J.C.A., in Akujinwa v. Nwaonuma Suit No. S.C. 27/1991; (1998) 13 N.W.L.R (Pt.

583) 632 at 647.

915. Circumstances in which an appeal may be dismissed by the Court of

Appeal.

(1) “It was held by the Supreme Court (per Karibi – Whyte, J.S.C.) unanimously

allowing the appeal inter alia, that: - “The Court of Appeal Rules provide for dismissing

an appeal in the following circumstances: - First, where there is non-compliance

with conditions of appeal. See Order 3 rule 20 sub rule 1. Secondly, if the appellant

fails to appear when his appeal is called on for hearing- see Order 3 rule 25, sub-rule

(1). Thirdly, where an appellant fails to file his brief of argument within the time as

extended by the Court-Order 6 rule 10. In the first two situations the rules have

made provisions enabling relisting the appeal so dismissed. I hereunder reproduce

Paras. 913-915 486