DR. MUHAMMED IBRAHIM ONUJABE & ORS v. FATIMAH IDRIS
(2011)LCN/4656(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 28th day of June, 2011
CA/A/71/M/2009
RATIO
APPLICATIONS FOR EXTENSION OF TIME TO APPEAL: WHETHER APPLICATIONS FOR EXTENSION OF TIME TO APPEAL OR LEAVE TO APPEAL ARE GRANTED AS A MATTER OF COURSE
Applications for extension of time to appeal or leave to appeal are not granted as a matter of course. See Solanke vs. Somefun (1974) 1 SC 141. PER REGINA OBIAGELI NWODO, J.C.A
AFFIDAVIT: EFFECT OF THE NON-COMPLIANCE OF AN AFFIDAVIT WITH THE PROVISIONS OF THE OATHS ACT AND SECTION 90 OF THE EVIDENCE ACT
The general rule is that where an affidavit fails to comply with the provisions of the Oaths Act and section 90 of the Evidence Act it shall by nature of the attendant substantial defect be incompetent and invalid. See Lawal Osula vs. UBA Plc (2003) 5 NWLR (Pt.813) 376 CA. PER REGINA OBIAGELI NWODO, J.C.A
ENLARGEMENT OF TIME TO APPEAL: STATUTORY PROVISION ON THE PRE-CONDITIONS THAT MUST BE SATISFIED BY A PARTY WHO SEEKS LEAVE OR EXTENSION OF TIME WITHIN WHICH TO APPEAL
The party who seeks leave or extension must satisfy the twin conditions stipulated in order 7 rule 10(2) of the court of appeal rules 2007 which provision is same as the new rules under order 7 rule 10(2) of the court of appeal rules 2011. Order 7 rule 10(2) stipulates as follows: “Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prema facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.” From the aforesaid provision reproduced above an applicant in an application of this nature must establish two preconditions to earn the discretion of the court. (1) He must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period. (2) His grounds of appeal must show prema facia good cause why the appeal should be heard. The applicant must satisfy the court by establishing the two conditions conjunctively before the application will be granted. See Bowaie vs. Adediwura (1976) 6 SC 143 Alaebe. Abimbola (1978) 2 SC 39 MOBIL Oil (Nig.) v. Agadaigho (1988) 2 NWLR (Pt.77) 383. PER REGINA OBIAGELI NWODO, J.C.A
FILING OF PROCESSES: CORRECT PROCEDURE FOR FILING OF PROCESS IN THE COURT OF APPEAL
A process meant to be filed in the court of appeal must be filed in the registry of that court where it is meant to be used. In A.S.T.C Quorun Consortium Ltd. (2004) 1 NWLR (Pt.855) 601 C.A Obadina JCA said: “What is in issue in this case is the question of filing. Should the affidavit after being sworn to, be filed in a court other than the court where it is to be used? I suppose not. The correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend and the two be forwarded to the court where it would be used for filing. It must also be pointed out that notice of intention to defend the suit is different from the affidavit in support thereof, What the rules require is that the notice must be filed with an affidavit disclosing a defence on the merit and I think, it can only be properly filed in the court where it is to he used. PER REGINA OBIAGELI NWODO, J.C.A
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. DR. MUHAMMED IBRAHIM ONUJABE
2. ONYIJIMOH IDRIS
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda)
3. BARIKISU IDRIS
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda) Appellant(s)
AND
FATIMAH IDRIS
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda) Respondent(s)
REGINA OBIAGELI NWODO, J.C.A (Delivering the Lead Ruling): This is a ruling in respect of the application by motion on notice filed by the applicants on 24/03/2009 wherein they prayed for the following reliefs:
“1. For an Order of the Court extending the time within which the Appellant/Applicants may seek leave of the Court to appeal against the Judgment of the Sharia Court of Appeal sitting in Lokoja delivered on 16/07/2008.
2. For an Order of this Court grunting leave to the Appellants/Applicants to appeal against the Judgment of the Sharia Court of Appeal sitting in Lokoja and delivered on 16/07/2008.
3. For an Order extending the time within which to file the Applicant’s Notice and Grounds of Appeal against the said judgment of 16/07/2008.
4. For an Order granting leave to the Appellants/Applicants to raise fresh issues in this Appeal to this Court.
5. For an Order granting leave to the Appellants/Applicants to appeal on grounds of mixed law and facts.
6. For an Order directing the Registrar of this Honourable Court not to charge the applicants fresh Filing Fees and or to take into consideration the Filing Fees already paid at the Court below with Kogi State Government Receipt Nos. 000170038 of 22/07/2008 and 000170063 of 19/08/2008, copies of which are attached hereto and marked as Exhibit C and D.
7. For an Order granting a stay of further proceedings of this matter in any of the Courts below pending the determination of this Appeal.”
The applicants on the motion paper set out 14 (fourteen) grounds in support of the application, and a six paragraph affidavit described as “Affidavit in support of the motion” with the title “In the Sharia Court of Appeal” deposed to by Dr. Muhammed Ibrahim Onujabe. Exhibited to the affidavit are the following: Exhibit A: the Notice of Appeal, Exhibit B: the Judgment of the Court below, Exhibit C: the Revenue Collectors Receipt, Exhibit E: the Ruling of the Court delivered on 17/03/09. The applicants also filed a further and better affidavit on 02/07/09 deposed too by Alex Musa.
The respondent filed counter affidavit on 22/04/2009.
On the directive of the court the learned counsel for the respective parties filed and exchanged written submissions in respect of the said motion.
At the hearing of the application, the learned counsels for the applicant Alexander Musa adopted their written address filed on 09/12/2010 and written reply filed on 04/03/2011. Learned counsel for the respondent A.M Aliyu adopted the respondents written address filed on 06/01/2011. In the applicants written address Mr. Barrah relied on order 7 rules (1) and (2) and order 12 rule 3 of the Court of Appeal rules 2007 in arguing the application, he relied also on the averments in the affidavits and the exhibits.
He contends that there is full compliance with the provisions of order 7 rule 7 of the rules of this Court. Learned counsel relying on paragraphs 5(vi), 5(vii), 5(viii) and 5(ix) of the supporting affidavit submitted that the explanation contained therein are good and substantial enough to excuse the delay and to grant the application.
He contends that the court processes filed by them vide a motion on notice dated 22/07/2008 which included a deeming order prayer was refused on grounds that the appropriate filing fees was not paid and by the time it was eventually heard the time prescribed had lapsed.
He cited Okere vs. Nkem (1992) 4 SCNJ 24 at 32
It is the further contention of learned counsel for the applicants that they are challenging the jurisdiction of the two lower courts to entertain and or to hear the suit as Islamic matter. He submits that there are enough grounds of appeal which show good cause why the appeal should be entertained. He further submitted that the court at this stage is not to decide on the merit of the appeal or chances of success as it is enough that prima facia, the grounds show good cause why the appeal should be entertained.
He cited C.B.N vs. Ahmed (2001) 5 SCNJ 307 at 327.
It is his further contention that the applicants are seeking leave to appeal on grounds which they have no right of appeal. He urged the court to strike out paragraphs 6,7,8,9,10 and 11 of the respondents counter affidavit as they all offend section 87 of the Evidence Act being legal conclusions and arguments in law. He urged the court to grant the application. The learned counsel for the respondent Abdullahil M. Aliyu in his written submission distilled one sole issue for determination which is:
“Whether the applicants have satisfied the twin conditions for the grant of an application for extension of time to appeal.”
It is his contention that a party who applies for extension of time to appeal must satisfy two conditions as stipulated in Order 7 rule 10(2) of the court of appeal rules 2007 . It is his submission that the applicants have not satisfied the two conditions. He therefore contends that there is no valid competent affidavit before the court in support of the application. He referred to section 90 of the Evidence Act Cap E 14 L.F.N. It is his further submission that under section 90(a) (g)(ii) and (iii) of the Evidence Act, for an affidavit to be valid it shall be headed in the court in which the case is pending and it shall state where it was sworn and before the person. He contends that the affidavit was headed in the Sharia Court of appeal and that the foot of the affidavit shows it was sworn to at Registry of Sharia Court of Appeal, Lokoja but superimposed with a stamp of the court of appeal.
In response the learned counsel for the applicant conceded to the fact that there is a defect but argued that the defect or error in the heading is not fatal to the application as it is a defect as to form. He referred to section 84 of the Evidence Act. He urged the court to permit the applicants to use the affidavit having been sworn before the Commissioner for Oaths of the Court of appeal as shown in the appended stamp.
He cited the following cases on legal technicalities Obasi Bros (Nig) Ltd vs. Willbross (Nig) Ltd (1991) 3 NWLR (Pt.181) 606 at 611 – 613, State vs. Gwonto & Ors (1983) 1 SCNLR 142 at 160, UBAKA & Sons Ltd vs. Ezekwem (2000) FWLR (Pt.1) 77 at 86.
He contends that applicants will amend the heading of the affidavit at the hearing.
I have carefully perused the application and the supporting affidavits and counter. I have equally considered the submissions of the learned counsels.
The applicants are seeking several reliefs, the main prayer is for extension of time within which to seek leave of court to appeal against the judgment of the Sharia court of appeal and leave to appeal.
Applications for extension of time to appeal or leave to appeal are not granted as a matter of course. See Solanke vs. Somefun (1974) 1 SC 141. The party who seeks leave or extension must satisfy the twin conditions stipulated in order 7 rule 10(2) of the court of appeal rules 2007 which provision is same as the new rules under order 7 rule 10(2) of the court of appeal rules 2011. Order 7 rule 10(2) stipulates as follows:
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prema facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
From the aforesaid provision reproduced above an applicant in an application of this nature must establish two preconditions to earn the discretion of the court. (1) He must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period. (2) His grounds of appeal must show prema facia good cause why the appeal should be heard.
The applicant must satisfy the court by establishing the two conditions conjunctively before the application will be granted.
See Bowaie vs. Adediwura (1976) 6 SC 143 Alaebe.
Abimbola (1978) 2 SC 39 MOBIL Oil (Nig.) v. Agadaigho (1988) 2 NWLR (Pt.77) 383
The present motion on notice is accompanied by an affidavit. The contention of the learned counsel for the respondent is that there is no valid/competent affidavit before the court to support the application for extension of time. Order 7 rule 10(2) of the rules used the phrase “shall”, this connotes that it is mandatory that an application for extension of time must be supported with an affidavit setting out the reasons for not filing the notice of appeal within the prescribed period. What then is the status of the affidavit in support of the present application? It is imperative for purposes of appreciating the arguments of counsel to reproduce the title of the affidavit and the last paragraph. It reads thus:
Okene, Kogi State
0803 5040677
IN THE SHARIA COURT OF APPEAL
IN THE KOGI STATE JUDICIAL DIVISION
HOLDEN AT LOKOJA
CASE NO. KGS/SCA/OMV/AP/02/2007
BETWEEN
1. DR. MUHAMMED IBRAHIM ONUJABE APPLICANTS
2. ONYIJIMOH IDRIS
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda)
3. BARIKISU IDRIS
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda)
AND
FATIMAH IDRIS RESPONDENT
(For herself and on behalf of all her children who are beneficiaries of the Estate of Late Alh. Idris Onoda)
Affidavit in Support of the Motion
I, DR. MUHAMMED IBRAHIM ONUJABE, male moslem, a civil servant and citizen of Nigeria resident at Okene do make this oath and to say as follows:
1. That I am the 1st defendant appellant in this suit and I am very familiar with the fats of the case.
6. That I swear to this affidavit conscientiously and believing some to be true and in accordance with the Oaths Act 2004.”
Signed
DEPONENT
Sworn to at the Registry of the Sharia Court of Appeal, Lokoja, this ….. .day of ….2008.
BEFORE ME;
COMMISSIONER FOR OATHS
From a glossary look at the reproduced portion of the affidavit in support I note two fundamental points. First is that the affidavit is titled “sharia court of appeal”. This title projects the affidavit as intended for use in the Sharia court of appeal. The second point is that it was intended to be sworn too at the Registry of the Sharia Court of Appeal Lokoja. There is no evidence that it was sworn before a Commissioner for Oath. There is no endorsement ex facia on the affidavit nor signature of the commissioner of oath in the file before me. However, on the motion on notice is an endorsement of payments made at the court of appeal cashier office for filing of the motion and the oath. The question arising therefrom is whether the applicant can use an affidavit titled Sharia court of appeal, intended by the wordings to be sworn too at the Sharia court of appeal in support of a motion on notice filed in the court of appeal. In effect is the affidavit valid or competent to support the motion on notice or is the defect in the heading merely of form for which Section 84 of the Evidence Act will apply to safe the defect.
The learned counsel for the applicant indicated in his reply on point of law that at the hearing of the application he will apply to amend the heading pursuant to section 85 of the Evidence Act. The record of the court reflects that there was no application during the hearing of the application to effect such amendment.
The general rule is that where an affidavit fails to comply with the provisions of the Oaths Act and section 90 of the Evidence Act it shall by nature of the attendant substantial defect be incompetent and invalid.
See Lawal Osula vs. UBA Plc (2003) 5 NWLR (Pt.813) 376 CA
In addition where an affidavit is found to be defective as a result of an omission or inaction by the court official before whom it was sworn. The defective affidavit containing the error may be amended and re-sworn by leave of court. The rationale of allowing such amendment is to attain substantial justice.
I have read Section 90, Section 84 and Section 85 of the Evidence Act and for purpose of emphasis I reproduce hereunder. Section 84 of Evidence Act reads:
“Section 84
The court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorised.
Section 85
A defective or erroneous affidavit may be amended and re-sworn by leave of the court, on such terms as to time, costs or otherwise as seem reasonable.”
I also will reproduce some relevant sections of Section 90 of Evidence Act which reads thus:
“(a) Every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter
(f) The affidavit when sworn shall be signed by the witness or if cannot write, marked by him with his mark, in the presence of the person before whom it is taken
(G) (ii) it shall state the date of the swearing and the place where it is sworn
(iii) It shall state that the affidavit was sworn before the person taking the some.”
Section 84 is not meant to cure substantial and fundamental defects in an affidavit what is imperative is that the court must be satisfied that the document was sworn to before a person duly authorised, in the instance application the commissioner for oath. The key words under Section 90(a) are “cause or matter” in the “COURT”, I agree with the learned counsel for the respondent that the phrase “court” envisages that the court in issue is the one in which the case is pending. Order 7 rule 1 of the court of appeal rules 2007 which provision is same as 2011 stipulates as follows:
“Every application to the court shall be by notice of motion supported by affidavit and shall state the rule under which it is brought and the ground for the relief sought.”
This provision is clear and unequivocal, and should be construed to give effect to its natural grammatical meaning. Clearly a notice of motion cannot stand on its own without an affidavit in support. The application to be competent must be accompanied by affidavit, therefore both the motion on notice and supporting affidavit ought to be filed in the same court. In the present application the title of the affidavit offends the provision of section 90(a) of the Evidence Act which requires that an affidavit be headed in the court where it will be used. Section 90(g) of the same act requires that the affidavit be dated and the place where it is sworn stated. The applicants’ affidavit in the courts file does not have any date nor signature. It merely states sworn to at the Registry of the Sharia Court of Appeal, Lokoja. The affidavit in the Registrars main file has a date on the column for date. The natural interpretation if one accepts the Registrars file is that the oath on the specific date stated was taken at the Registry of the Sharia Court of Appeal, Lokoja. The place of attestation and date are in conflict with the stamp of the court of appeal on the column for commissioner for oath in the same Registrars main file. The stamp has embedded on it a scribble like an initial.
There is no signature nor name of the commissioner for oath. There is also no date on the stamp. Clearly from the last paragraph of the affidavit which read affidavit sworn to in the Sharia Court of Appeal, Lokoja and the stamp of the Court of Appeal at the column for commissioner of oaths, it is indisputable that the affidavit in support is defective and contravenes the provision of section 90 of the Evidence Act. A document such as an affidavit must be clear and unequivocal on when and where attestation was administered.
There is endorsement that the oath was paid for in the court of appeal but there is no evidence it was administered. The defect revolves on the title Sharia court of appeal and the lack of evidence that the oath was administered. The court referred to and described under order 1 rule 5 of the court of appeal rules 2007 now court of appeal rules 2011 is the court of appeal no other court, therefore the Sharia Court of Appeal title and Registry should not be in the affidavit in support of a motion in the court of appeal.
This is a fundamental defeat.
The motion on notice is a process in the court of appeal. The affidavit in support ought to be headed same court of appeal and sworn too at the registry of the court of appeal as stated. A process meant to be filed in the court of appeal must be filed in the registry of that court where it is meant to be used. In A.S.T.C Quorun Consortium Ltd. (2004) 1 NWLR (Pt.855) 601 C.A Obadina JCA said:
“What is in issue in this case is the question of filing. Should the affidavit after being sworn to, be filed in a court other than the court where it is to be used? I suppose not. The correct procedure would have been after the affidavit in support of the notice of intention to defend has been sworn to, it should be attached to the notice of intention to defend and the two be forwarded to the court where it would be used for filing. It must also be pointed out that notice of intention to defend the suit is different from the affidavit in support thereof, What the rules require is that the notice must be filed with an affidavit disclosing a defence on the merit and I think, it can only be properly filed in the court where it is to he used.”
Section 90 of the Evidence Act sets out the provisions to observe when taking affidavit. Section 90(a) of the Act stipulates that every affidavit taken in a cause or matter shall be headed in the court and in the cause or matter.
This provision requires that where a deponent decides to swear to an affidavit the same should be titled the court where he will depose to the affidavit, if before a commissioner of oath.
Section 97 of the Evidence Act stipulates that before an affidavit is used in the court for any purpose, the original shall be filed in the court. The affidavit in support of the present application is wrongly titled Sharia court of appeal. The affidavit should be titled in the court where it is to be used. By the rules of the court of appeal every application must be supported by an affidavit. An applicant cannot support a motion on notice filed in this court with an affidavit in support filed in the Sharia court of appeal.
The defect in title can be remedied under section 84 because the defect is in form. However when the defect is as to substance it is fundamental. It is not mere title as there is no evidence that it was deposed before a commissioner for oath and the rules provides that a motion must be supported by an affidavit. The affidavit should be filed in the same court. The administration of oath by a person duly authorised is mandatory and an issue of substance.
Section 83 of the Evidence Act prescribed that an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered or before his legal practitioner or a clerk of the legal practitioner.
The import of this provision is that affidavits cannot be sworn before certain persons. Therefore the person duly authorised as commissioner of oath that signed the deponents’ affidavit must state his name. The information on name is verifiable.
An affidavit in brief is a statement of facts or declaration made either on oath or affirmation before an authorised person. The averments in the affidavit are admissible as a fact until disproved because the averments are sworn before a commissioner for oaths. The life of an affidavit is the declaration on oath. What makes that piece of paper an affidavit competent to support the motion on notice is the attestation or swearing before the commissioner for oaths. Once the document is not sworn to, it is a mere piece of paper not an affidavit. Therefore without oath there is no affidavit. See Maraya Plastics Ltd. vs. Inland Bank (Nig) Plc (2002) 7 NWLR (Pt.765) CA 109.
In Ijaodola vs. Registered Trustees of C and SCM (2006) 4 NWLR (Pt. 969) 159.
Udusesbe vs. SPDC (Nig) Ltd. (2008) 9 NWLR (Pt.1093) CA 593
This Court held:
“Where a court declines to exercise its discretion under section 84 of the Evidence Act to permit a defective affidavit in support of an application to be used in the application, the implication is that the application is totally unsupported by any affidavit. The further implication is that no facts or materials have been placed before the court on which exercise its discretion to grant or not to grant the application.”
Infact there is no doubt from the endorsement on the motion on notice as regards fees paid, that payment was made for oath taking, but there is no evidence the deponent attested before a commissioner for oath nor evidence of who endorsed on the stamp of the court of appeal. It is not sufficient to scribble an initial. Section 84 of the Evidence Act enjoins the court to permit a defective affidavit if satisfied it has been sworn before a person duly authorised. In the instance application the nature of the defect is not one in which this court can exercise discretion and allow same under section 84 of the Act.
A defective affidavit is any affidavit that fails to meet mandatory provisions of the Evidence Act as to the form or contents thereof or is offensive to any other statute such as the Oaths Act or any other law. The provision under section 84 of the Act restricts the permission to the provisions of the Evidence Act as there is no reference to the Oaths Act which regulates the administration of oaths. The Oaths Act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent.
One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance. Section 56 of the Oaths Act 1963 CAP 01 Laws of Federation (2004) stipulates thus:
“Every commissioner for oaths or notary public before whom any oath or affidavit is taken or made under this Act shall state truly in the jurist or attestation at which place and on what date the oath or affidavit is taken of mode.”
Like I earlier noted the attestation column in the registrar’s file had just the month of 2008 which is not legible and there is no signature therein nor date on the stamp of the court.
The applicant from the facts presented has not satisfied the court that a person duly authorised administered the oath on the affidavit in support.
Furthermore, section 85 of the Evidence Act allows for amendment but same can only be valid if re-sworn by leave of court.
The applicant was served respondent written address, he had the opportunity to rectify the defect by amendment but decided to pay no attention. It is my firm view that the defect in the affidavit touches both the substance and the form. It cannot be disregarded. The Evidence Act under section 84 and section 85 created an avenue for the applicant to have rectified the defect he chooses not to avail himself of the provision. Equity does not help the indolent. The stamp of the court of appeal on the affidavit is not the same as swearing to an affidavit before a person duly authorised as a commissioner for oath with his signature and legible date.
The affidavit I hold is defective and incompetent. The resultant scenario is that there is no affidavit in support of the application. By the provisions of order 7 rule 10(2) of rules of this court, the application must be supported by affidavit which will set forth good and substantial reasons why appeal was not filed within the prescribed period.
Since there is no competent, affidavit the conclusion as rightly contended by the respondents counsel is that there is no reason proferred in support of the prayers. Order 7 rule 1 of the court of appeal rules 2011 used the phrase “shall” which connotes it is mandatory. There is no affidavit as I had earlier held. Therefore the motion abinitio is incompetent as it is not in compliance with the provision under order 7 rule 1 of the rules of court. If an affidavit fails to conform with the provisions of the oaths act and section 90 of the Evidence Act, it shall by virtue of the substantial defect be incompetent and invalid.
See Lawal – Osula vs. UBA Plc (2003) 5 NWLR (Pt.813)
Where a motion on notice filed is adjudged incompetent. The proper order to make is one of strike out. Consequently the motion on notice filed on 24/03/2009 is hereby struck out. Cost of N10, 000.00 (Ten Thousand Naira) only is awarded in favour of the respondent.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the ruling just delivered by my learned brother, Nwodo, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The motion herein is not supported by affidavit, as the affidavit in support is clearly incompetent. This procedure offends Order 7 Rule 1 of the Court of Appeal Rules 2011 which provides that every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought. Where a motion filed before this Court is not supported by affidavit, it is incompetent and liable to be struck out.
For this reason and the more detailed reasons in the lead ruling, I find the motion on notice incompetent and same is hereby struck out. I abide by the order on cost made in the lead ruling.
JIMI OLUKAYODE BADA, J.G.A.: I read before now the lead Ruling of my Lord, REGINA OBIAGELI NWODO, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
The affidavit in support of this application is defective and it has rendered the application incompetent.
Therefore, the application is hereby struck out. I abide by the order on costs.
Appearances
A.M. AliyuFor Appellant
AND
Alexander MusaFor Respondent
