Kashim V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

The appellant was charged with and tried for the offence of culpable homicide punishable with death in the Borno State High Court sitting at Maiduguri in charge No BOHC/MG/CR/23/14. Following the conclusion of evidence and addresses, the trial Court rendered its judgment on 11-12-2014, convicted the appellant and sentenced him to death. Dissatisfied with this judgment, the appellant on 8-2-2015 filed a notice of appeal against it on the sole ground that the decision of the High Court is unreasonable and cannot be supported having regard to the evidence.

Appeal No. CA/J/60C/2015 commenced by the filing of the said Notice of Appeal was entered in the Court of Appeal on 8-5-2015.

On 16-6-2016, the Court of Appeal dismissed the appeal for want of prosecution consequent upon the appellant’s failure to file appellant’s brief within 45 days from the service of the record of appeal on him as prescribed by the then applicable Order 18 Rule 2 Court of Appeal Rules 2011. The short ruling of the Court of Appeal reads thusly “The record of Appeal was entered before the Court on 08-05-2015. By virtue of Order 18 Rule 2 of the Court of Appeal Rules, 2011, appellant has 45 days within which to file his brief of argument. There is no Brief of Argument filed by the appellant and no application before us seeking to regularize same. Since appellant is aware of today’s hearing, we would take it that he is no longer desirous in prosecuting this appeal. Consequently, we would invoke Order 18 Rule 10(2) of the Court of Appeal Rules, 2011 and dismiss the appeal for want of prosecution.”

By a motion on notice filed on 21-6-2016, the appellant applied for an order setting aside the decision dismissing his said appeal and an order relisting same to the cause list of the Court for hearing. The Court of Appeal on 30-3-2017 dismissed the application on the ground that it has no power to relist an appeal it has dismissed for want of prosecution consequent upon the appellant’s failure to file appellant’s brief and in the absence of an application for extension of time to file appellant’s brief. Dissatisfied with this decision, the appellant on 12-4-2017 filed a notice of appeal commencing this appeal No. SC.573/2017 against the decision to this Court.

​Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief and respondent’s brief.

The appellant’s brief raised one issue for determination as follows – “whether or not the Court below was right when it refused to set aside its order dismissing the appellant’s appeal and relist same for the purpose of making the necessary application to enable the appellant’s appeal be heard on the merit.”

The respondent’s brief also raised one issue for determination as follows – “whether having regard to the facts and circumstances of this case, the lower Court properly exercised its discretion by refusing to set aside its order dismissing the appellant’s appeal and to relist the appeal for hearing.”

The issues raised for determination in the two briefs are in substance the same. Let me determine this appeal on the basis of the issue as couched in the appellant’s brief.

​I have carefully read and considered all the arguments in the respective briefs on this issue.

The argument of learned Counsel for the appellant that the Court of appeal should have struck out and not dismiss the appeal because the appeal is incompetent is not valid for consideration in this appeal against the refusal of the Court of Appeal to set aside its dismissal of the appeal.

The first reason is that Order 18 Rule 10 (1) Court of Appeal Rules 2011 (Order 19 Rule 10 (1) Court of Appeal Rules 2016), provides that where an appellant fails to file his brief within 45 days within the time provided in Rule 2 of Order 19 therein, or within the time as extended by the Court, the respondent can apply for the dismissal of the appeal or the Court may sou motu dismiss the appeal for want of prosecution. So Order 18 Rule 10 (2) of 2011 Rules that gives the Court of Appeal the power to dispose of the appeal in such situation prescribes the order it can make as one of dismissal.

​Secondly, the appeal was dismissed for want of prosecution consequent upon failure to file appellant’s brief and not for want of competence of the appeal. The competence of the appeal was not even questioned and was not an issue that was determined by the Court. If the Court of Appeal had determined that the appeal was incompetent, it would have struck it out. But that did not matter before that Court. The argument that it should have struck out an appeal that the Court had adjudged to be wanting in prosecution for failure to file respondent’s brief is contrary to Order 18 Rule 10 (1) and (2) of the 2011 Rules.

Thirdly, the law is settled by a long line of decisions of this Court that the Court of appeal lacks the jurisdiction to revisit or vary its decision dismissing an appeal before it for want of prosecution consequent upon failure to file appellant’s brief except where the decision was made without the Court being made aware that a brief had been filed or that an application for extension of time to file appellant’s brief had been filed before the date the appeal was dismissed. An application for extension of time to file brief filed in the morning of the day the appeal was dismissed, that was not brought to the attention of that Court cannot operate to enable that Court revisit or vary its dismissal of the appeal or relist the appeal after dismissal. In Asalu V Dakan and Ors (2006) SC (Pt.111) 120 this Court restated thusly “This Court has in a number of cases held that an appeal dismissed by the Court of Appeal for failure to file appellant’s brief is final and that such an appeal cannot be revived by the Court of Appeal. See Olowu V Abolore (1993) 5 Nigerian Weekly Law Report (Pt.293) 255, Babayagi V Bida (1998) 1-2 SC 108 (1998) 7 Nigeria Weekly Law Report (Pt.538) 367” see also Ekpeto V Wanogho (2004)20 NSCQR 333 at 344.

The argument of learned Counsel for the appellant that it was the former Counsel to the appellant that was served the notice of appeal that present Counsel was not served, that he was sick and was abroad for medical attention, that his secretary hurriedly sent an application for adjournment of the appeal but got a wrong appeal number CA/J/60c/2015 instead of CA/J/177c/2016 are irrelevant since the Court of Appeal has no jurisdiction to relist the dismissed appeal or revisit or vary its decision dismissing the appeal for want of prosecution due to failure to file appellant’s brief.

In the light of the foregoing, the sole issue for determination is resolved against the appellant.

On the whole, this appeal fails as it lacks merit.

It is accordingly dismissed.

SC.573C/2017