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  • Rasaki v Ajijola
  • 931
  • 2017-04-07
  • SC. 825/2016
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Rasaki v Ajijola

1. HON. FATIMA RASAKI
2. PEOPLES DEMOCRATIC PARTY (PDP)
V
1. OLADIMEJI LATEEF AJIJOLA
2. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC)
SUPREME COURT OF NIGERIA

OLABODE RHODES-VIVOUR JSC (Presided)
CLARA BATA OGUNBIYI JSC
CHIMA CENTUS NWEZE JSC
AMIRU SANUSI JSC (Read the Lead Judgment)
PAUL ADAMU GALINJE JSC

SC. 825/2016
FRIDAY, 7 APRIL 2017

COURT - Discretionary powers - Exercise of - Proper approach of court to
COURT - Issues before it - Duty of to consider all
JUSTICE - Substantial justice - Onus on court to do between parties
LEGAL PRACTITIONER - Counsel - Sins of - Impropriety of court visiting on litigant

PRACTICE AND PROCEDURE - Counsel - Sins of - Impropriety of court visiting on litigant
PRACTICE AND PROCEDURE - Filing fees - Inadequacy of - Whether vitiates proceedings - Discretion based thereon
- Exercise of - Proper approach of court to
PRACTICE AND PROCEDURE - Irregularity - Where party takes steps in proceedings after being aware of - Effect of
WAIVER - Meaning of
WORDS AND PHRASES - ‘Waiver’ - Meaning of

Issues:
1. Whether the court below was right when it struck out the appellants’ appeal on the ground that the
appellants’ brief of argument was under-assessed and the fees paid did not include the penalty for late filing.
2. Whether the court below ought to have considered the appellants’ submission pursuant to Order 20, rule
5 of the Court of Appeal Rules, 2011 to the effect that having taken fresh step in the appeal after
bec oming a ware of the allege d irre gula rity complained about and before objecting to the
competence of the appella nts’ brief, the first respondent is deemed to have waived his right to
challenge the competence of the said appellants’ brief of argument and the appeal.

Facts:
The appellants were also the appellants in the Court of Appeal. They claimed that being out of time, they had applied and obtained extension of time to file their brief outside time prescribed for and had paid the penalty for filing out of time.
After filing the brief, the Court of Appeal extended the time to file out of time because the brief filed exceeded the prescribed
required pages, which led to the appellants filing a new brief within the time extended. At the hearing of the appeal, the Court
of Appeal raised suo motu, the issue of competence of the appeal on ground of inadequacy of filing fees. The 1st respondent
thereafter applied for a striking out order of the appeal. The appellants contended that they had paid the necessary filing
fees and in the alternative, sought adjournment to enable them regularise the payment. They further contended that the 1st
respondent having taken fresh steps in the appeal after the irregularity alleged, have waived his right to complain. The lower
court struck out appellants’ appeal and being aggrieved, the appellants appealed to the Supreme Court contending that the
lower court erred in striking out their appeal.
In determining the appeal, the Supreme Court considered the following statute:
Court of Appeal Rules, 2011, Order 20, rule 5 - “An application to strike out or set aside for noncompliance
with these rules, or any other irregularity arising from the rules of practice and procedure in
this court, any procee dings or any document, judgment or order therein shall only be entertained
by the court if it is made within a reasonable time and before the party applying has taken any fresh
step after becoming aware of the irregularity.”

Part 931