Relisting of Appeal: The Jurisdiction Question Osun APC's Application Triggered

By Sarafa Ibrahim

It is no longer a news that the Osun state chapter of the All Progressives Congress (APC) has filed an application to relist the appeal against the judgement of the Federal High Court, Osogbo, in suit no FHC/OS/CS/103/2022 nullifying the October 15, 2022, local governments election in the state, dismissed by the Court of Appeal, Akure Division, but what remain to be seen is, what will become of such move. In a previous piece, I highlighted a catalogue of judicial precedents and what they tell us about similar attempts in the past and how they ended up.

But there could be a bigger legal question that the process may have provoked–and that is jurisdictional. Record of appeal is quite fundamental to an appeal process and the failure of an appellant to get it transferred clearly robs the Court of competence to determine an appeal. It is so fatal that the Court of Appeal in KILAWA v. KALSHINGI & ANOR (2015) LPELR-41652 held that “the issue of competence of the record of appeal raises a very frontal way the issue of the jurisdictional competence of this Court to hear and determine this appeal on the merit.”

In essence, the record of appeal is the very foundation upon which an appeal stand, and without which an appellate court is stripped of jurisdiction to adjudicate on it. Jurisdiction goes to the heart of the authority or let us say, power of the court, to entertain either a suit or application, and this much was established by the Supreme Court in AJAYI v. ADEBIYI (2012) 11 NWLR (Pt. 1310) 137 at 182 when it held that “Absence of jurisdiction is irreparable in law and the only procedural duty of a Court is to strike out the case.”

The appeal that the Osun APC is trying to revive at the Court of Appeal in Akure, Ondo state, was dismissed pursuant to Order 8 Rule 18(1) of the Court of Appeal Rule, 2021. By the court’s rule, the appellant is bound to cause the Registrar of the lower court to compile and transmit the records of appeal within 60 days after the filing of Notice of Appeal or to do so on his/her own within 30 days if the Registrar failed to do so at the expiration of the 60 days.

Notwithstanding this provision, things can still be salvaged if the appellant apply for an extension of time under Order 6, Rule 9 (1), and must within the time prescribed, compile and transmit the record of appeal and file brief of arguments. If these rules are however not observed, Order 8, Rule 18(1) of the Court of Appeal Rule, 2021 will be activated and an application for the dismissal of the appeal may be caused by the Respondent to be entertained by the Court.

However, the rule provides an opportunity to bring the dismissed appeal back to life, but this must be done within a specific timeframe through an application. Order 8, Rule 18(3) provides that “An application for relisting of the appeal SHALL (emphasis mine) be filed within seven (7) days of striking out order. The operative word, shall, implies a mandatory condition of not later than seven (7) days from the dismissal order, which an application for relisting must conform with to even invoke the Courts jurisdiction to entertain it.

So, did the Osun APC application fulfil the condition set by the court’s rule? From the records, the Osun APC filed its application on the 23rd January, 2025, which is 11 days from the 13th January, 2025, when the Court of Appeal handed the decision to struck out the appeal challenging the November 30, 2022 judgement of the Federal High Court, Osogbo, which sacked the YES or NO officials from office.

What will easily agitate minds with the above reality is, what does the law says in such scenario? The Supreme Court answer this in OLOWU v. ABOLORE (supra), the Supreme Court per KARIBI-WHYTE JSC at page 277-278 when it held that “It is well settled that the exercise of appellate jurisdiction is statutory. A court cannot exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the constitution or some enabling statute. Hence in the instant case the jurisdiction to relist an appeal dismissed under Order 6 rule 10 should be found in the Rules of the Court.”

While Order 8 Rule 18 (3) actually allows for application to bring back a dismissed appeal to live by providing convincing explanation to the court, however, the rule provides that it must be done within a specific timeframe. But glaringly, as the records clearly showed us, the Osun APC application failed to meet the mandatory provision of the Court of Appeal Rule on that process. It is elementary in law that you cannot build something on nothing and expect it to stand. Never!

The Osun APC failure, first to transmit record of appeal and file brief of argument within stipulated time provided by the law, and also to file application to relist the dismissed appeal within seven (7) days, is quite fatal and almost impossible to be remedied. It even get worse reading the excuse adduced by the Osun APC in its application for relisting before the Court of Appeal.

In paragraph two of its ground for the application, the Osun APC blamed the “delay on the part of the 3rd Appellant/Applicant were due to change in leadership and clerical error of a staff who eventually left without adequate transmission of the court processes served in this matter”, whereas Tajudeen Aremu, who claimed to be one of the Clerk to the Director of Administration in the Office of the 3rd Appellant/Applicant said on affidavit deposition that he was unable to pass on the served court processes to enable the response of the Appellant because the Secretary of the Osun APC, Mr. Kamorudeen Alao, who happens to be his boss, was on a sick leave. Did you notice the contradictions?

The change in leadership excuse by the Osun APC in its filing before the court is at best, heresy and lame, because Sooko Tajudeen Lawal who replaced Prince Adeboyega Famodun was Deputy Chairman, and took reign as Chairman several days before the November 30, 2022, judgement of the Federal High Court, Osogbo, that sacked the YES or NO officials. In fact, the ‘Notice of Appeal’ against the judgement was filed under Sooko Lawal leadership of the Osun APC and so, it sound too weak to suggest that a supposed leadership change stalled the transmission of record of appeal and brief of arguments within stipulated time or responding to application filed by the respondent to dismiss the appeal.

This takes me to the position of the Supreme Court in S&D CONSTRUCTION CO. LTD v AYOKU & ANOR. (2011) LPELR-2965(SC), where it set five conditions to be met by a party applying for relisting of an appeal either dismissed or struck out for want of diligent prosecution. In addition to this, the apex court came down hard on application for relisting appeal dismissed for “want of diligent prosecution relates to domestic matters, negligence on the part of the counsel and unconcerned attitude of the Appellants themselves” in SC.528/2014, as the instant case clearly suggested.

Massoud AbdulRahman Oredola, JCA (as he was then) in suit no CA/S/156/M/2009 decided on January 11, 2010 held that “Prosecution of appeals before appellate courts should not be regarded or treated by litigants as a game of hide and seek, where one party can go into hiding only to re-emerge at his own convenience.” He further added that “an appellant who decides to go to sleep at that point in time, cannot NULGE the Court into wakefulness and action whenever he rouses his slumber. The world has moved and unfortunately, there is no going back. Time waits for no one. Equity afterall, Aida the vigilant and not the indolent.”

On January 10, 2025, the Appellant lead counsel, Mr Muhydeen Adeoye Esq. had written the Court of Appeal to indicate that “Shortly after 30th November, 2022, when the judgement was delivered and 2nd December, 2022, when a Notice of Appeal was filed in the suit, we have not been able to receive any further communication from our client.” On January 13, 2025, when the application for the dismissal of the appeal marked CA/AK/226M/2024, was heard, Mr Ayodele Esq. who stood in for the Appellants, maintained the position of Mr Adeoye in the letter of 10/01/2025 to the court that “we haven’t heard from our Client since the Notice of Appeal was filed, that is, on 2/12/2022.”

It was clear enough from the foregoing that the appellants’ willfully refuse to take actions on their appeal and as the Supreme Court held in CHIME v. UDE (1996) 7 NWLR (Pt.461) 379, “An appellant who fails and or refuses to file his brief of argument can be regarded, treated or deemed as having abandoned his appeal and the same shall be dismissed for want of diligent prosecution as in the instant case. Like an action which is statute barred, the situation or position is irredeemable or implacable.” This was exactly what the Court of Appeal in Akure did on the appeal in CA/AK/226M/2024 by dismissing it and the implication, as legion of precedents showed us, is that it is no longer justiciable by the same court that handed the order or judgement.

To seal it all, the Supreme Court in the A-G OF THE FEDERATION & ORS v PUNCH (NIG) LTD & ANOR. (2019) LPELR-47868 submitted that once an appeal is dismissed for want of diligent prosecution, the Court “no longer had competence or jurisdiction on the appeal that has become spent by the order of the dismissal,” and the apex court went to further hold that the court had “become functus officio on the matter. It can neither set aside its order, nor relist the already dismissed appeal. It is no longer on the cause list of the court.”

Based on the forgoing, it is quite straightforward that the Osun APC application before the Court of Appeal challenges not just settled principles of law but also on war path with established judicial precedents. The question that I’m sure will linger in minds is that, will the Osun APC desperate attempt to manipulate the judiciary succeed or it will be resisted and judicial clarity maintained? Well, time will tell.

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