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  • 2004-01-12
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N.E.P.A. vs. Eboigbe

NATIONAL ELECTRIC POWER AUTHORITY

V

FRIDAY EDOKPAYI EBOIGBE

COURT OF APPEAL

( BENIN DIVISION )

RABIU D. MUHAMMAD, JCA ( Presided and Read the Lead Ruling )

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA

KUMAI BAYANG AKAAHS, JCA

CA/B/200/96

FRIDAY, 11TH JULY, 2003

APPEAL - Appeal dismissed or struck out under Order 3, rule 20(1),(3) & (4) , Court of Appeal Rules for non-compliance with conditions of appeal - Whether can be restored

APPEAL - Appeal dismissed under Order 3, rule 25(1) Court of Appeal Rules, for non-appearance of the appellant - Whether can be relisted

APPEAL - Appeal dismissed under Order 6, rule 10, Court of Appeal Rules, for failure to file appellant’s brief of argument - Whether appeal court has jurisdiction to restore

COURT - Court of Appeal - Circumstances same has power to dismiss appeal - Order 3, rule 20(1), (3) & (4), Order 3, rule 25(1) & (2) and Order 6, rules 2 and 10 Court of Appeal Rules

LEGAL PRACTITIONERS - Counsel - Mistake of - Whether litigants can be punished therefor

Issues:

1.              Whether or not the Court of Appeal has jurisdiction to relist an appeal which it had earlier dismissed.

2.              If the answer to (1) above is in the affirmative, whether or not

the applicant has shown sufficient and good cause why the appeal should be relisted.

Facts:

By a motion brought pursuant to Order 3, rule 20(3) of the Court of Appeal Rules, 1981, the respondent herein prayed for an order dismissing this appeal for want of due prosecution. On the 6th day of December, 2001, the application was granted and the appeal was dismissed for want of prosecution. The applicant has now filed an application praying for an order relisting the appeal. By paragraph 4 of the affidavit in support of applicant’s application it deposed to the fact that the appeal was abandoned by its former counsel who left the country without informing the appellant and gave the appeal to another counsel without appellant’s consent. According to the applicant/appellant it only became aware of what happened to its appeal when the respondent’s counsel wrote it.

The respondent opposed the application and submitted that the Court of Appeal has no jurisdiction to restore appellant’s appeal as it was dismissed for want of diligent prosecution under Order 6, rule 10, Court of Appeal Rules.