OLAORE & ORS. V. OKE

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OLAORE & ORS. V. OKE

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1213

OLAORE & ORS. V. OKE

5

1.

OLAJIDE OLAORE

2.

OLALEKAN OLAORE

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APPELLANTS

10 3. DR. OLADIPO OLAORE

V

TITUS ADIGUN OKE

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RESPONDENT

SUIT NO. SC 12/1986

SUPREME COURT OF NIGERIA

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ESO,

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J.S.C.

UWAIS,

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J.S.C.

KAWU,

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J.S.C.

AGBAJE,

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J.S.C.

CRAIG,

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J.S.C.

20 4th December, 1987

Appeals - Rules - Change of - Effect on pending appeals - Filing of briefs -

Failure to - Disnzissal of Appeal when rule as to filing of briefs not in force

- Whether party obliged to file brief in case listed for hearing before 31st

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December 1984 - Section 1(2) Court of Appeal (Amendment) rules 1984.

ISSUE:

Whether an appeal can be rightly dismissed for failure of the appellant to file a

brief of argument, when at the time of filing the appeal the Court of Appeal (Amend-

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ment) Rules, 1984 making the filing of briefs of argument mandatory were not in

force.

FACTS:

The appellant filed an appeal in the Court of Appeal, which was set down for

hearing on 26th November, 1984. The court ordered that the parties file and ex-

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change briefs of argument before the next adjourned date, 13th March 1985. On

that date, no brief was filed and neither of the parties, appeared in court. Counsel

for the respondent then applied that the appeal be dismissed under Order 6 Rule

10 of the Court of Appeal (Amendment) Rules, 1984 for failure to file brief of ar-

gument. The Court of Appeal dismissed the appeal, and the appellant appealed

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to the Supreme Court, contending that at the time of filing the appeal, it was not

necessary to file briefs of argument, as the Court of Appeal (Amendment) Rules

came into force after the appellant had filed his appeal.

HELD:

1.

The Court of Appeal Rules 1984 did not apply to this appeal at the time that it

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came for hearing and the appeal should not have been dismissed for failure to

comply with those Rules.

2.

The Court had the power to strike out or dismiss the appeal for non-compliance

with Order 3 rule 25 of the Court of Appeal Rules.

3.

Since the appeal in this case was filed and set down for hearing, the Court of

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Appeal (Amendment) Rules did not apply. Thus at that time, it was not

necessary to file briefs of argument. Therefore it was wrong of the Court of

Appeal to strike out the appeal on that ground.

Chief A.M.O. Akande

for Appellant