CaseLaw
Abah V. Monday & Ors. (2015) CLR 5(a) SC.
Judgement delivered on Friday,15th of May, 2015
Brief
Facts
This is an appeal against the ruling of the Court of Appeal sitting in Abuja wherein the lower court dismissed the Appellant's appeal No. CA/A/370/2013 on the 12th day of December, 2013. The facts leading to this appeal are as summarized below:-
Record of appeal in the dismissed appeal was transmitted from the trial Federal High Court to the lower court on the 10th day of July, 2013. Appellant's brief of argument and Reply brief were filed on 31st July, 2013 and 13th September, 2013 respectively.
After the transmission of the Record of Appeal and the filling of briefs aforesaid, the Appellant's counsel became aware of the then recent Court of Appeal Practice Direction 2013 and hence filed an application on 4/11/13 inter alia, seeking to regularize the said processes which were transmitted and/or filed outside the time prescribed by the said Court of Appeal Practice Direction 2013. The Appellant's counsel in paragraphs 10 and 11 of the affidavit in support of the said motion on notice stated that the said lapses occurred due to his inadvertence as he was not aware of the said Practice Direction. The 1st Respondent's counsel who was also men not aware of the said Practice Direction followed suit by tilling an application to regularize his brief of argument which had been filed in accordance with the Court of Appeal Rules 2011.
On 12th December, 2013 when the matter came up for hearing before the lower court, the said court observed that the motion was defective as the appellant failed to indicate the suit number of the matter in the trial Federal High Court with respect to prayer No. 1 dealing with the Record of appeal and hence, the appellant's counsel sought for the leave of the court to withdraw the said motion.
Appellant's counsel applied for an adjournment to enable him take steps to regularize the said processes.
The 1st respondent's counsel opposed the appellant's application for adjournment and instead applied for the dismissal of the appeal under Order 8 Rule 18 of the Court of Appeal Rules, 2011. The 1st respondent's counsel made the application orally. At this time there was pending in the lower court an application for stay of further proceedings of the matter at the trial Federal High Court filed by the appellant.
The lower court nevertheless dismissed the Appellant's appeal for failure to transmit record of appeal within the prescribed time pursuant to Order 8 Rules 4 and 5 of the Court of Appeal Rules, 2011. The lower court also dismissed all the pending applications.
The appellant being dissatisfied with the ruling of the lower court, filed an appeal against same to this court.