[By Dele Farotimi]
I have studied the response of the Government of Lagos State to my statement on the planned recommencement of tolling on the Lekki-Ikoyi Link Bridge and my response is as follows:
The summary of the response of Lagos State Government is that it has a pending appeal against the case of Ebun-Olu Adegboruwa Esq. v. Attorney General of the Federation & Ors Suit No FHC/L/CS/1405/02, delivered by the Federal High Court on 27 March 2014. The basis for this argument is that the Lagos State Government filed an application for extension of time, within which to compile and transmit the Records of Appeal at the Court of Appeal on 11 November 2014; and what was struck out in the Court of Appeal ruling of 9 October 2017 “was the application… and not the appeal”, as “there is a distinction between striking out an application and striking out an appeal”.
I have absolute respect for the person and the legal knowledge of Mr. Moyo Onigbanjo, SAN, but the Attorney-General of Lagos State couldn’t have misstated the law more violently, or press it into the service of injustice and governmental fraudulence, if he had originally set out to do so.
I have stated ad nauseam that I have retired from the practice of law as a day job, but I find myself compelled to presume to educate those more knowledgeable about law, and pertinent to restate the position of the law with respect to the filing of a record of appeal in the Court of Appeal. The law requires an Appellant to cause the Registrar of the lower Court to compile and transmit the records of appeal within 60 days, after the filing of the Notice of Appeal or to do so himself; within 30 days, if the Registrar failed to do so, at the expiration of the 60 days. (See, Order 8 Rules 1 and 4 Court of Appeal Rules, 2021). The Appellant may apply, under Order 6, Rule 9(1) Court of Appeal Rule 2021, for extension of time, if he failed to compile and transmit the records of appeal within the prescribed time.
The Lagos State Government availed itself of the window for extension of time under the foregoing provision of the Court of Appeal Rules when it filed an application for extension of time within which to compile and transmit the records of appeal at the Court of Appeal on 11 November 2014. However, the Lagos State Government slept on its privilege under the law when it abandoned the application and the appeal, by extension, by not appearing in court on the day the application was to be heard. This warranted the ruling of the Court of Appeal striking out the application and the appeal. In the words of the Court of Appeal:
“Since Applicant is aware of today’s date and is not in court, we take it that Applicant is not diligent in prosecuting its application. It is hereby struck out. Number Deleted”. (emphasis mine).
Order 8 Rule 18(2) Court of Appeal Rule 2021 provides that failure to comply with Order 8 Rules 1 and 2 warrant an order striking out the appeal. In the case of A.G. Fed. V. Bi-Courtney Ltd. (2012) 14 NWLR (Pt.1321) 46 (ratio 4), it was held that the requirement for filing a record of appeal is “mandatory and non-compliance with the provision is sanctioned by dismissal of the appeal”. In the case of BOB v. THE COUNCIL, ABIA STATE UNIVERSITY UTURU & ANOR (2015) LPELR-25611(CA) 72 – 78 Paras D – D, it was also held that: “when there is no competent Records of the Appeal, I think the proper order to make is to strike out the appeal for incompetence”. (See also the Supreme Court decision of Adewunmi v. Oketade (2010) 3 SCNJ 368). In NIGERIAN NAVY & ORS v. LABINJO (2012) LPELR-7868(SC), the Supreme Court held that the court has the inherent powers to, even suo motu, summarily dismiss the appeal “for want of prosecution without waiting for the respondent to make the application”.
It is important to note that, there cannot be a competent appeal without a competent record of appeal. In Garba v. Ummuani (2012) LPELR-9841(CA), it was held thus: “By Order 8 Rule 18 of this Court’s Rules; where there is failure to compile and transmit competent Records of Appeal, the Appeal may be dismissed…” See also the case of Nigerian Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56. Therefore, the Government of Lagos State has hit a brick wall on this matter and cannot take any further actions in relation to the matter.
The position of a record of appeal is germane in an appellate court process. This is so much so that, absence of record of appeal or incompetent record of appeal clearly robs the court of competence to determine an appeal. According to the Court of Appeal in KILAWA v. KALSHINGI & ANOR (2015) LPELR-41652(CA), “the issue of competence of the record of appeal raises in a very frontal way the issue of the jurisdictional competence of this Court to hear and determine this appeal on the merit”.
It is important to highlight that the Court of Appeal held “[the] number deleted”. It can only mean one thing- that the appeal number has been struck out. This is the only reasonable interpretation to reach, as an application brought under a substantive appeal cannot have a number different from the appeal number. There can only be one number in an appeal. This is so, as the Court of Appeal had held in DIAMOND BANK v. AMAEFULE (2018) LPELR-50855(CA) that even a “cross appeal and main appeal… bear the same appeal number”.
It should be noted that the Court of appeal dismissed the application and the appeal on the ground of lack of diligent prosecution. The want of diligent prosecution in the prosecution of the appeal by the Lagos State government has made its position so incurably bad to the extent that the appeal cannot be relisted pursuant to Order 8 Rule 18 (3) Court of Appeal Rules. This is in view of the express provision that, an application for relisting of an appeal can only be “filed within seven days of the striking out order”. This is also in tandem with the decision of the Supreme Court in the case of GOVERNOR OF ZAMFARA STATE & ORS v. GYALANGE & ORS (2012) LPELR-9715(SC), which is to the effect that, such provision cannot remedy an appeal “dismissed for lack of diligent prosecution”.
If the Lagos State Government felt aggrieved by the 9 October 2017 order of the Court of Appeal striking out its application and appeal, it still had the option of challenging the ruling of the court and having it set aside its order by bringing an application pursuant to Order 6 Rule 10 Court of Appeal Rules. The aforesaid provision says this can only be done within fourteen days after the ruling. There is no evidence that this was done.
Even if the Government of Lagos State obstinately (though erroneously) believe that it has an existing appeal, it is only expected that it should have taken steps to prosecute the appeal since 9 October 2017 after the ruling. Instead, after the Court of Appeal ruling of 9 October 2017 rendered the defective record of appeal irredeemable and the appeal still-born, the State government had continued to parade a non-existing appeal as a basis for flouting the judgement of a court of competent jurisdiction.
It is pertinent to point that the Lagos State Government claimed in its statement that the Federal High Court “did not specifically or expressly grant the … injunction sought” in the matter. If we are to accept this position as correct, then the question would be, what orders did the government of Lagos State seek to stay, when it applied for stay of execution of the judgement of the Federal High Court? Only the Learned Attorney General and the Government of Lagos State can answer this question.
Based on the foregoing, I reiterate my position that collection of tolls on the Lekki-Ikoyi Link Bridge is illegal because of the subsisting judgment of the Federal High Court on the subject.
I hereby place the Lekki Concession Company, otherwise known as LCC, established as being complicit in the LEKKI MASSACRE, the owners of LCC, disclosed and undisclosed, the Nigerian Police, and the Nigerian Army, on clear and UNAMBIGUOUS NOTICE, that I shall NOT be paying ANY toll on the Lekki-Ikoyi link bridge.
The LCC and the Lagos State government are to also note, that we shall be demanding an account for the monies illegally and fraudulently extorted from the residents of Lekki and other users of the bridge, since its appeal was thrown out.
Dated: 5th May 2022.
Dele Farotimi is a Lagos State-based lawyer and human rights activist.