The Enugu Division of the Court of Appeal has ruled that an appeal dismissed due to failure to transmit the records of appeal from the lower court within the prescribed time cannot be restored.
The three-man bench of the court presided over by Justice Helen Ogunwumiju unanimously held that an old provision of the Court of Appeal Rules 201, which gave room for the restoration of such appeals dismissed on the grounds of transmission of appeal records from the lower court “is extinct and no longer exists” in the extant 2016 Rules.
“This simply means that the dismissal of an appeal is final and that no application for restoration may henceforth be brought before the Court of Appeal,” Justice Ogunwunmiju held in her lead ruling.
Two other members of the panel, Justice Igwe Agube and Rita Pemu, agreed with the lead ruling.
According to Justice Ogunwumiju, the absence of an equivalent Order 8 Rule 20 of the 2011 Rules from the 2016 Rules “is not a lacuna but a deliberate attempt to ensure speedy prosecution of appeals.”
She added, “In recent times, this court (the Court of Appeal) has been inundated with appeals that are abandoned after a notice of appeal is filed and some, after record is transmitted.
“The large number of abandoned appeals shows that the appeals were filed not for the purpose of getting justice from this court but for reasons which I would refrain from speculating.”
The Court of Appeal made this pronouncement in its ruling delivered on July 11, 2017, a copy of which was made available to our correspondent on Wednesday.
The ruling was on a motion filed on April 24, 2016 by Chiefs Sunday Okafor, Joe Egbe, Thomas Okonkwo and Innocent (for themselves and on behalf of Abagana), praying for an order restoring the appeal marked CA/E/86/2012, same having been struck out on February 4, 20113.
The applicants also prayed for an order substituting them for the appellants on record – Chief Augustine Ezenwa, F.O. Akpuaka, G.N. Anuntu, F.N. Anakwenze and Geofrey Okafor (for themselves and on behalf of Abagana) – all of whom were said to be dead.
The appellants, now dead, were sued by the respondents – Chief Augustine Esedo, Samuel Ugoezue, Anhony Mogo and Emmanuel Amaku – in suit marked A/174/1995 before the Anambra State High Court at Awka.
At the end of the trial, judgment was delivered on November 16, 2011 against the appellants.
The appellants filed a notice of appeal on December 12, 2011 against the judgment of the high court.
The appellants were said to have failed to compile and transmit record of appeal within the time allowed by the rules of court and on March 22, 2012, the respondents filed an application to dismiss the appeal for want of diligent prosecution.
The Court of Appeal in its ruling delivered on February 4, 2013 struck out the appeal.
The applicants in the case subsequently filed their motion seeking the restoration of the appeal on April 24, 2016.
In its ruling, the Court of Appeal held that “where the cause of action is one that survives the death of a party or parties as the case may be, it is the function of the court upon any application by any party to substitute the deceased with a living person who is affected by the appeal so that the proceedings can be brought to a logical conclusion”.
But Justice Ogunwumiju held that the substitution would be dependent on whether or not the appeal could be restored having been struck out.
In dismissing the motion therefore, she held, “I find no merit in this application and it is hereby dismissed. No order as to cost.”
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