MR. BENJAMIN LAYINKA OLATUNJI & ANOR v. MR. ABDULATEEF HAMMED
(2008)LCN/3014(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2008
CA/L/284M/2007
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
Between
1. MR. BENJAMIN LAYINKA OLATUNJI
2. FEDERAL AIRPORT AUTHORITY OF NIGERIA Appellant(s)
AND
MR. ABDULATEEF HAMMED Respondent(s)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL NOT SUPPORTED BY AN AFFIDAVIT IS A CASE OF NON-COMPLIANCE WITH THE PROVISION OF LAW
I agree entirely with his reasoning and conclusion that the application is incompetent and ought to be struck out The motion dated 16th May, 2007 and filed on the 22nd May, 2007, seeking for an order of dismissal of the Appellant’s/Respondents’ Notice of Appeal dated 26th June, 2006 for lack of diligent prosecution is not supported by an affidavit nor is the said Notice of Appeal exhibited. This is a clear case of non-compliance with the provisions of Order 7 Rule 1 of the Court of Appeal Rules, 2007. PER MSHELIA, J.C.A.
PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling): By a motion dated the 16th May 2007 and filed on the 22nd May 2007, the Applicant herein seeks for an order dismissing the Appellants/Respondents’ Notice of Appeal dated 26th June, 2006 for lack of diligent prosecution. This motion which is brought under order 3 Rules 10, 11 and 20 (3) of the Court of Appeal Rules 2002 and the inherent powers of this Court. The application is supported by a 14 paragraphs affidavit deposed to by one Henry Godwin Asuquo, a Litigation Clerk in the Chambers of Festus Keyamo. Annexed to the supporting affidavit are a notice of appeal dated and filed on the 28th June 2006, and which is marked exhibit A, a motion on notice (Exhibit B) brought pursuant to Section 46 of the 1999 Constitution of the Federal Republic of Nigeria and Order 2 Rules 1 & 2 of the Fundamental Rights (Enforcement Procedure) Rules 1979.
Also annexed to the application for stay of further hearing which is marked exhibit C.
The Appellants/Respondents filed a four paragraphs counter affidavit dated 5th May 2007 and a further counter affidavit dated 19th October 2007.
The application herein seeks for a dismissal of the Appellants/Respondents’ Notice of Appeal dated 26th June 2006 for lack of diligent prosecution. However paragraph 3 of the affidavit in support of the application refers to the notice of appeal that is sought to be dismissed as dated 28th of June 2006 and filed the same date. Clearly the notice of appeal which is annexed to the supporting affidavit and marked exhibit A is dated and filed on the 28th of June 2006.
There is neither an affidavit in support of the applicant’s prayer in the motion paper, nor in the notice of appeal dated 26th of June 2006 exhibited.
This being so the application is incompetent and ought to be struck out for failure to conform to the Order 7 Rule 1 of the Court of Appeal Rules 2007 which provides thus:
“Every application to the Court shall be by notice or motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.”
Accordingly same is struck out.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the ruling just delivered by my brother Galinje JCA. I agree that the application is incompetent and same should and is accordingly struck out.
ADZIRA GANA MSHELIA, J.C.A.: I read in advance the ruling of my learned brother Galinje, JCA, just delivered. I agree entirely with his reasoning and conclusion that the application is incompetent and ought to be struck out The motion dated 16th May, 2007 and filed on the 22nd May, 2007, seeking for an order of dismissal of the Appellant’s/Respondents’ Notice of Appeal dated 26th June, 2006 for lack of diligent prosecution is not supported by an affidavit nor is the said Notice of Appeal exhibited. This is a clear case of non-compliance with the provisions of Order 7 Rule 1 of the Court of Appeal Rules, 2007. I am therefore of the firm view that the absence of the affidavit and the relevant Notice of Appeal renders the application incompetent.
For this and the detailed reasons stated in the lead ruling, the application being incompetent is accordingly struck out.
Appearances
Mr. M. I. OnigbanjoFor Appellant
AND
Mr. D. C. KemdirinFor Respondent
