Relisting Of Appeal: What Judicial Precedents Tell Us -By Sarafa Ibrahim

On Tuesday, something interesting happened at the Akure division of the Court of Appeal. After weeks of stirring needless controversy and crisis with subjective interpretation of court judgements, the Osun state chapter of the All Progressives Congress (APC) are back at the Court of Appeal to get the appeal dismissed by the appellate on January 13, 2025, relisted.

Although, the application could not be heard on Tuesday due to the inability of the APC to serve its co-appealants in the case, the Allied Peoples Movement (APM) and Babarinde Nurudeen Idowu, the application was a glaring admission of the existence of a subsisting and valid judgement that nullified the October 15, 2022 local governments election in Osun state for violating Sections 28, 29 and 150 of the Electoral Act, 2022.

But that was not the only gist that the whole scenario presented. In November 2024, one of the respondent had approached the Court of Appeal with an application to dismiss the appeal filed against the November 30, 2022 judgement of the Federal High Court, Osogbo, in suit no FHC/OS/CS/103/2022 that invalidated the October 15, 2022 local governments election since the appellants didn’t either compile records from the lower court nor file brief of argument for nearly two years.

The APC waited until the Court of Appeal dismissed the appeal before approaching the Federal High Court, Osogbo, to compile records even though, it was after 10 days of the court decision, as against 7 days provided by the laws. And more, the record of court was compiled for a non-existent appeal because as at the time the APC approached the lower court for the records, the Court of Appeal had already dismissed the notice of appeal filed to challenge the November 30, 2022, judgement that sacked the YES or NO officials. This was a fundamental flaw on the part of the APC as it touches on a sacred principle of law that you cannot build something on nothing.

Away from the unfolding reality, the question that must agitate minds now is, how rooted in law is the application of the Osun APC? Well, the answer to this question lies in litany of judicial precedents set by the various courts, including the Supreme Court, on applications that are similar to the one just raised before the Court of Appeal by the APC.

In the application of the APC filed before the Court of Appeal, it blamed a change in leadership and clerical error of a staff as some of the reasons that prevented it from the transmission of court processes as required by the laws to prosecute its appeal against the judgement sacking the YES or NO officials. In his deposition to the Court, Mr. Tajudeen Aremu, who claimed to be one of the Clerks to the Director of Administration in the Office of 3rd Appellant (APC), acknowledged receiving the application for the dismissal of the appeal at the Court of Appeal on November 28, 2024, but couldn’t pass it on to the APC’s Secretary, Mr. Alao Kamorudeen, who was on a health ground leave, hence, the failure of the party to respond to the application.

That sound funny and illogical, right? What Mr. Aremu did with his deposition was what the Supreme Court in Babayagi v. Alhaji Bida (1998) 7 NWLR described as “enlisting the sympathy of the Court” but which was flatly turned down. In that decision, the Supreme Court held that “where the Appellant failed to file Appealant’s brief only one year after it became due for filing, the Court of Appeal’s decision in dismissing the appeal under order 6 Rule 10 of the Court of Appeal Rules on the application of the respondent, was upheld by the Court in dismissing the Appealant’s further appeal. Specifically dealing with the question of whether where circumstances demand an Appellant could have sympathy of the Court.”

In a concurring judgement, Anthony Ikechukwu Igun (JSC as he was then) on page 379 of the judgement said the “Learned Counsel to the Appellant tried in his brief or argument to enlist the sympathy of this Court by arguing that the Court below was wrong in dismissing the appeal instead of striking it out as the Appellant might not have been aware that his Counsel would not be attending Court to oppose the application. I need only restate that sympathy cannot override the clear provisions of the rules of Court and that it would be in the interest of the parties and their Counsel to endeavour always to comply with the prescribed times set out in the rules for the doing of any act or taking any step.”

The above judicial precedent clearly defeat the attempt by the APC to tap on the sympathy of the Court of Appeal to rehear an appeal already dismissed by the Court. Contrary to the impression that the APC tried to paint in its application pending before the Court of Appeal, records of proceedings leading to the dismissal of the appeal in CA/AK/226M/2024 showed that A. M Ayodele held brief for Muhydeen Adeoye for Appellants/Respondents, which the APC is included.

Barr. Ayodele specifically told the court that “We have earlier on written to the Court on 10/01/2025 that we haven’t heard from our Client since the notice of Appeal in this Appeal was filed, that is, on 2/12/2022. This is our position. There was no objection, whatsoever, raised against the application, and that informed the decision of Justice Oyebisi. F Omoleye, who led the three-man panel of justices, to order the dismissal of the appeal.

In ABIODUN ADENIJI & ANOR. v TINA GEORGE INDUSTRIES LTD & OR (2019) LPELR–48891, the Supreme Court held that “the Appellate Court has the inherent jurisdiction to suo motu list any appeal, and summarily dismiss same for want of prosecution, without waiting for the Respondent to make an application either orally or by way of motion on notice, because the court has the constitutionally clothed inherent power to do away with frivolous, inept and dormant appeals so as to decongest the over-bloated cause list, especially where there is evidence of nonchalance and tardiness on the part of the Appellant. The only saving grace will perhaps come into play, if there is pending before the court, an application for extension of time to regularise the situation. However, where such application is heard and refused for whatever reason, it exposes the appeal to the cold hands of dismissal for want of prosecution, whether on an application by the Respondent or by the court in the exercise of its inherent powers.”

On the face of facts on the ground, there was no record to suggest that the APC or any of the two other appealants filed an application for extension of time to regularise the situation at the time the Court of Appeal ordered the dismissal of the appeal. This clearly make the holding of the Court of Appeal that the appellants failed to diligently prosecute their appeal is unassailable and hard to fault going by settled judicial precedents.

In the case of OLOWU & ORS v. ABOLORE & ORS (SUPRA), the Supreme Court affirmed the finality of the decision of the Court of Appeal to dismiss an appeal for want of prosecution as Justice Salihu Moddibo Alfa Belgore (then CJN) in page 278-279 of the judgement report plainly put the position of the law to say ” Once the Court of Appeal has dismissed the appeal for want of prosecution due to Appellant’s failure to file brief of argument, that Court is functus officio on that matter.” Justice Nikki Tobi, JSC, went even further by stating in CHUKWUKA & ORS v. EZULIKE & ORS (1986) 5 NWLR (pt 45) 892 and KRAUS THOMPSON ORGANISATION v. N.I.P.S.S. (2004) 17 NWLR(pt. 901) 44 at 55 that “An appeal which is dismissed under Order 6 Rule 10 of the Court of Appeal Rules cannot be re-listed when an appeal is dismissed under Order 6 Rule 10 of the Court of Appeal Rules, its life terminates and it is therefore removed from the cause list. No Court has jurisdiction to revive or resuscitate it.”

If precedents mean anything in the judiciary, the clear position established from the above judicial pronouncements referenced tell us that the Osun APC latest expedition in the Akure division of the Court of Appeal is nothing but a waste of the courts precious time. The simple truth, which the Osun APC must quickly accept is that, it willfully bungled its appeal at the Court of Appeal, and the implication is that, it cannot bring it back to life, which effectively sealed the faith of its members who are the beneficiaries of the invalidated October 15, 2022 local governments election.

• Sarafa Ibrahim writes from Osogbo, Osun state. He can be reached via neyoclass09@gmail.com