BARJE v. HAUSAWA & ORS (2020)

BARJE v. HAUSAWA & ORS

(2020)LCN/14618(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Monday, September 07, 2020

CA/S/114M/2019(R)

RATIO

PLEADINGS: THE PERIOD FOR APPEALING AND EXTENSION OF TIME.

The period for appealing from the decision of the High Court to this Court is statutorily fixed. By virtue of Section 24 (2) (a) of the Court of Appeal Act 2004, the time for appealing against the decision of a High Court in a civil action is three months. Section 24 (4) of the Court of Appeal Act (supra) allows for this Court to extend the time stipulations under Section 24 (2) and (3). According to Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 every application for enlargement of time within which to appeal shall be supported by an affidavit setting out the good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. This provision is pari materia with Order 3 Rule 4 (2) of the Court of Appeal Rules, 1981 which the Supreme Court interpreted and applied in the case of CO – OPERATIVE & COMMERCE BANK (NIG) LTD V. EMEKA OGWURU (1993) 3 NWLR (PT. 284) 630. In that case the apex Court reiterated the two cardinal conditions under the rule and emphasised that they must be conjunctively satisfied before the Court can exercise its discretion in favour of an Applicant for extension of time within which to appeal. These two conditions have been highlighted and their scope and extent have also been emphasised in the submissions of respective learned counsel herein. It is axiomatic that in adjudication of matters, involving exercise of discretion by a Court, every case must be decided on its facts and circumstances. It is therefore necessary, and indeed a duty, for an Applicant for extension of time to appeal to present before the Court whatever is essential to the clear and adequate consideration of his application. An application for extension of time within which to appeal should be supported by an affidavit evidence showing facts which cannot be disputed. I have hereinabove reproduced what I considered the relevant paragraphs of the affidavits of the parties. The Applicant appears to be very evasive and economical with the truth by failing to identify and give the full particulars of his erstwhile counsel and the Registrar of the lower Court who he claimed appeared to have misled him. In my opinion this failure to furnish particulars is a monumental disaster and fatality to the application. According to the recent decision of the Supreme Court inJ. M. R. LTD V. MT BENEDICTA & ANOR (2019) 12 NWLR (PT. 1686) 323, whenever an Applicant makes any such sweeping claim of failure or wrongdoing in an affidavit against some persons, they are entitled to be confronted with such allegations for their input on its veracity or otherwise.
With respect to the facts and circumstances in the case of J. M. R. LTD V. MT BENEDICTA & ANOR (supra) the Supreme Court, per Galinje, JSC had this to say at pages 340 – 341 paragraphs A – D:-
“Where an applicant for a relief relies on deposition in an affidavit that indicts another person, the applicant must serve the affidavit on that person. Such service is necessary to give the person opportunity of being heard; that is, opportunity to deny or admit the indicting depositions. In this case, the depositions in the affidavit in support of the applicants’ application accused the applicants’ solicitor ‘s’ clerk of dereliction of duty and serious misconduct in the discharge of her duty. But the affidavit was not served on the clerk who is the only person that can deny or admit the contents of the affidavit as it affects her. In the circumstance, the allegations against the clerk were not established. Consequently, there is no ground on which the applicants’ application can be granted.” Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

UMARU BARJE APPELANT(S)

And

1. ADAMU MAI HAUSAWA 2. BALA LAUJE 3. MANIRU SULE 4. MUSA ABDULLAHI 5. ABDULLAHI LENI RESPONDENT(S)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): In an application dated 16th August, 2019 but filed on the 21st August, 2019, the Applicant sought for the following reliefs:
They are:-
“1. An order granting the applicant an extension/enlargement of time within which he shall seek leave to appeal the judgment of the High Court of Justice of Kebbi State, Yauri judicial Division delivered on 24th day of September, 2018 in Suit No. KB/YR/HC/13CV/2017.
2. Extension/Enlargement of time be granted the applicant within which he shall appeal against the judgment cited above if prayer 1 is granted.
3. Extension/Enlargement of time be granted the applicant within which he shall file Notice and grounds of Appeal against the judgment of the trial Court.
4. Any such further other orders the honourable Court may deem fit to make in the circumstances.”

The grounds for the application are:-
“1. The Applicant is a village farmer who inherited a very large expanse of land from his late father so many years ago.
2. He leased out some of the farm lands to some of his kinsmen to assist them and also to make

out something from here.
3. Some of them did not pay him the loan sum for the leasehold and he took them to Court at various time and Courts.
4. The judgment of the honourable Court was not in his favour but it was not explained to him so he remained on the land.
5. He now engaged the services of counsel who advised him the best option is to appeal the said judgment even though he is out of time.”

It was brought pursuant to Section 5 of the Court of Appeal Act 1976 (as amended) andOrder 6 (1) & (2) of the Court of Appeal Rules, 2016as well as under the inherent jurisdiction of this Court. It is supported by a 4 paragraphs affidavit deposed to by one Grace Ahmed, an Assistant Litigation Secretary, an employee of Amana Law Chambers, counsel to the Applicant. The affidavit in support has two documents attached as Exhibits. They are a proposed notice of appeal and the CTC judgment of the Kebbi State High Court delivered on 24th September, 2018 in Suit No. KB/YR/HC/13CV/2017.

The Respondent sought to oppose the application by way of a 15 paragraphs counter

affidavit filed on 2nd December, 2019. It was deposed to by one Zuwaira Yakubu, a Litigation Secretary and staff of Adalchi Law Chambers, counsel to the Respondents. The counter affidavit was supported by a 5 page written address filed on 3rd June, 2020 in further support of the application is a further affidavit of 4 paragraphs filed on 22nd April, 2020 with a 10 page written address attached thereto. By way of a reply to the address in support of the counter affidavit, the Applicant filed a 3 page written address. It was filed on 9th June, 2020.

At the hearing of the application before us on 9th June, 2020, respective learned counsel to the parties identified the above processes, adopted and relied on them. While learned counsel to the Applicant urged on us to grant the application, learned counsel to the Respondents urged that the application be refused for totally being devoid of any merit.

In arguing the application, learned counsel Mr. Onyenobi for the Applicant began by giving a brief account of the facts that necessitated its being brought and later formulated what he considered to be the sole issue for determination in it. Thereafter, Mr.

Onyenobi explained that an appeal is a Constitutional right open to a litigant dissatisfied with the outcome of the decision of a Court. He sought to rely on Sections 241 (1) and 242 (2) of the Constitution of the Federal Republic of Nigeria 1999, as amended. According to learned counsel the refusal of an application for extension of time or leave to appeal is a denial of fair hearing. He supported this opinion with the case ofNEWSWATCH CO. LTD. V. ATTAH (2006) 3 SCNJ 231 at 237 and also AUDU V. FRN (2013) 1 SCNJ 111 at 114. Learned counsel also cited and relied on the case of MCFOY V. MCFOY (2006) 3 SCNJ 264 at 268 where the Supreme Court outlined the essential requirements in an application for the extension of time to appeal to include, a supporting affidavit giving reasons for the delay or failure to file the appeal within the stipulated period under the law.

With respect to the instant application, learned counsel referred to the affidavit in support and remarked that the applicant has given what he called cogent reasons why he delayed filing his appeal. He then ascribed the delay to other persons either than the Applicant himself. Further to that

Mr. Onyenobi took on the counter affidavit of the Respondents and maintained that it was not without faults. According to learned counsel, paragraphs 5, 8, 9, 10, 12 and 13 are objections, legal arguments and conclusions thereby being contrary to Section 115 (2) of the Evidence Act 2011. He urged on the Court to accordingly strike them out. He also relied on Sections 13, 37 and 38 of the Evidence Act 2011to further discredit paragraphs 6, 7 and 15 etc. of the counter affidavit for being inappropriate in the circumstance. He urged on the Court to so hold and disregard the identified paragraphs of the counter affidavit.

While going into the crux of the matter Mr. Onyenobi, of counsel drew the attention of the Court that an application of this nature is granted at the discretion of the Court. He added that this type of discretion is one that must be exercised judicially and judiciously. He then pointed out that the instant Applicant has proffered enough material facts and evidence to warrant this application to be granted. He urged on the Court to so hold and exercise its discretion in favour of the Applicant.

In his response, learned counsel to the

Respondents began by relying on the averments in the Counter affidavit to express his vehement opposition to the application. Learned counsel then added that it has been settled in a galaxy of decided judicial pronouncements that in order to succeed, in an application of this nature, the applicant must show by affidavit evidence good and substantial reasons for failure to appeal within the prescribed period as well as grounds of appeal which show good cause why the appeal should be heard. According to learned counsel these two requirements must co-exist before the application could succeed. He referred to the decisions in CHIME V. ONWUEGBU (2013) 55 NSCQR 261 at 267 and ADIGWE V. FRN (2015) 37 WRN 1 at 10 – 11. He further relied and quoted very extensively from the decision of this Court in NSCDC V. AZEGEJIR & ORS. (2019) LPERL 46883 (CA) at 20 – 23 C-B.

While further relying on a number of decisions of the Supreme Court and this Court such asIKENTA BEST NIG. LTD V. ATT. GEN. OF RIVERS STATE (2008) 2 SC (PT. 1) 28, MINISTER OF PETROLEUM & ANOR V. EXPO SHIPPING LINE (NIG) LTD & ANOR (2010) SCM 111 at 125 and IJEZIE V. IJEZIE

(20140 LPELR – 23773 (CA) ETC. Learned counsel broke down the key and essential requirements in an application like this one. According to learned counsel the law is that whether an application or motion seeking for extension of time within which to appeal will be granted or refused defends to a large extent upon the materials or facts placed before the Court by the Applicant. Learned counsel further pointed out that in dealing with this application the Court should be more concerned and interested in whether there are good and substantial reasons for the delay and failure to lodge an appeal within the time prescribed by the Constitution or statute as well as to take a critical look at the proposed grounds of appeal and discern whether they prime facie show good cause why the appeal should be heard. Learned counsel emphasised that these two conditions must be satisfied concurrently.

With respect to this application, and while conceding that granting or refusing it is a matter of discretion which should be exercised judicially and judiciously, learned counsel argued that the contents of the affidavit in support of the application have

woefully failed to satisfy the requirements of the law to warrant the favourable exercise of the discretion of this Court to grant it. He relied on paragraphs 6 – 14 of the counter affidavit and urged on the Court to so hold and refuse the application.

In his reply on points of law, learned counsel reiterated the case of NSCDC & ANOR V. AZEGEJIR & ORS (supra) while all that remain at pages 1 to 2 are a substantial re – arguments of the main facts and law in support of the application. I do not need to go over them once again.

In deciding this application, I wish to begin by placing what I consider the most relevant facts for or against it from the affidavits of the respective parties. In that regard. I believe that paragraphs 3 (d) to (r) of the affidavit in support of the application are a very good starting point. They are as follows:-
“d. That he was very indisposed on the date of the judgment and could not come to Court.
e. That even after the judgment was delivered he expected but did not still see his counsel not knowing that he too was not present before the Court on that day.
f. That he later went

to the Court and met the registrar who informed him the judgment was in his favour.
g. That it was later on when Appellant went to lease some portion of the land to some other people that respondents came and confronted him that the land does not belong to him.
h. That this time around he now engaged the services of another counsel having lost confidence in the former who did not represent him on the date of that judgment.
i. That Mr. P.c. Onyenobi accepted his brief and applied for certified true copy of the judgment from the trial Court.
j. That when he got and studied it, he informed the applicant he is already out of time to appeal even though it is the only option left for him to contend the root of title besides the trial Court did not vest the title to land to anybody in his judgment of 24/09/2018 but only ascribed possession and occupation of the disputed land to the respondents who did not file a counter claim and inquired why he did not appeal same immediately when he was within time.
k. That he told him he did not know that the
judgment was not in his favour then.
l. That it was the registrar of the trial

Court who told him that the judgment was in his favour.
m. That because of this he remained on the land and did not bother to appeal since there was no need to do so.
n. That it was only when Mr. P.c. Onyenobi informed him that the judgment is not in his favour that it downed on him and he saw a reason to appeal.
o. That failure to appeal same within time is not his fault but the fault of his former counsel and as an illiterate he very well believed the registrar of the trial Court who told him the judgment was in his favour.
p. That it is for the aforestated reasons that he
is desirous of appealing the said judgment.
q. That the proposed Notice and Grounds of Appeal and Certified True Copy of the judgment are herein annexed and marked as Exhibits ‘A’ and ‘8’ respectively.
r. That a close look at the Notice and grounds of Appeal will disclose there are recondite issues at law to be settled on the appeal”.

Further to the above, paragraphs 5 to 14 of the counter affidavit must also be put in full perspective. For good effect, they are as follows:-
“5. That the depositions contained in paragraph 3

d to v and paragraph 4 of the Applicant’s supporting affidavit are not true.
6. That the day the judgment of the trial was delivered both the Applicant and his counsel were present before the trial Court and the Registrar of the trial Court was ordered by the trial judge to interpret the proceedings to the Applicant from English to Hausa to hearing and understanding and the Applicant appeared to have understood the outcome of the decision of the trial Court.
7. That after the Respondents were served with the motion papers, they handed same over to Mr. Fingilla and after going through same, he called the Registrar of the trial Court into verify what the Applicant said in his affidavit and the Registrar replied to him that there was never a time when he informed the Applicant that the judgment of the trial Court was in his favour.
8. That after the judgment of the trial Court, the Applicant deliberately trespassed into the Respondents’ farmlands and tried to take possession by force when he instructed some persons to take over the portions of the farmlands forcefully away from the Respondents.
9. That even as at the time the Applicant

attempted to lease some portions of the farmlands to other people and was restrained by the Respondents he was still within time to file appeal against the decision of the trial Court but he failed to utilize same thinking he can take the law into his hands.
10. That the rationale behind the change of counsel by the Applicant was owing to the fact that the former counsel informed the Applicant that his claims against the Respondents have no merit as he has no credible witnesses to prove his case against the Respondents and as such, he cannot waste his time in pursuing a fruitless suit.
11. That presently there is a pending case between the parties in this suit, before the Chief Magistrate Court 1, Yauri, Kebbi State, in Case No. YR/43c/2019 for Criminal Trespass against the Applicant and 12 others in respect of the farmlands in dispute and the Applicant ls still insisting that the farmland belongs to him and his present counsel is the person representing him.
12. That the Proposed Notice and Grounds of Appeal do not contain prima facie good grounds of appeal.
13. That failure of the Applicant to file the appeal within the stipulated

period was deliberate and borned out of disrespect to the Court and to also waste the precious time of this Honourable Court.
14. That it will be in the interest of justice not to grant this application as the Respondents will seriously be prejudiced.”

In paragraphs 3 (e) to (j) of the further affidavit, the Applicant challenged and sought to deny nearly all the averments in paragraphs 5 to 14 of the counter affidavit.

I have carefully considered all the averments in the various affidavits of the parties together with the arguments and submissions of the respective learned counsel as well as some of the decided cases they cited.

Before a decision is made on the merits of this application, it is important to point out that learned counsel to the Applicant was a bit inelegant in relying on a non – existent provision of the law by bringing this application under Section 5 of the Court of Appeal Act 1976, rather than the most relevant and applicable provision in Section 24 (4) of the Court of Appeal Act, 2004. In addition to that, and after taking a very hard look at the 3 main reliefs, another inelegance and misconception is

clearly discernible. It is clear that from Exhibit B attached to the application, it is a final judgment of a State High Court sitting to exercise jurisdiction as a Court of first instance. Therefore, by virtue of Section 241 (1) (a) of the 1999 Constitution, as amended an appeal against that decision to this Court can be brought as of right without the need for the leave of the High Court or this Court. Prayer one for extension of time to seek leave to appeal is therefore otiose and of no moment. To the extent of prayer two being hinged on prayer one, both are tainted with incompetence and are accordingly struck out. Prayer 3 appears to be the most critical and relevant in the circumstance. It does not appear to be fully in context of the judgment in Suit No. KB/YR/HC/13CV/2017, but in the interest of substantial justice and the hallowed principle of practice that a litigant should not be punished for the mistake or wrongdoing of his Counsel, the Court must be inclined to take prayer 3 as sufficiently relevant. I accordingly do so. Simply put, prayer 3 in for extension of time to appeal.

The period for appealing from the decision of the High Court to

this Court is statutorily fixed. By virtue of Section 24 (2) (a) of the Court of Appeal Act 2004, the time for appealing against the decision of a High Court in a civil action is three months. Section 24 (4) of the Court of Appeal Act (supra) allows for this Court to extend the time stipulations under Section 24 (2) and (3). According to Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 every application for enlargement of time within which to appeal shall be supported by an affidavit setting out the good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. This provision is pari materia with Order 3 Rule 4 (2) of the Court of Appeal Rules, 1981 which the Supreme Court interpreted and applied in the case of CO – OPERATIVE & COMMERCE BANK (NIG) LTD V. EMEKA OGWURU (1993) 3 NWLR (PT. 284) 630. In that case the apex Court reiterated the two cardinal conditions under the rule and emphasised that they must be conjunctively satisfied before the Court can exercise its discretion in favour of an Applicant for extension of time within which to

appeal. These two conditions have been highlighted and their scope and extent have also been emphasised in the submissions of respective learned counsel herein.

It is axiomatic that in adjudication of matters, involving exercise of discretion by a Court, every case must be decided on its facts and circumstances. It is therefore necessary, and indeed a duty, for an Applicant for extension of time to appeal to present before the Court whatever is essential to the clear and adequate consideration of his application.

In explaining why he failed to appeal within the prescribed time, the within Applicant appears to be relying on paragraphs 3 (d) to 3 (p) of the affidavit in support of the application. These averments are denied in paragraph 5 of the counter affidavit and are said and described to be untrue. This paragraph of the counter affidavit was also denied by the Applicant in paragraph 3 (e) of his further and better affidavit. It was also challenged for being contrary to Section 115 of the Evidence Act, 2011. There is no need for any delay or mincing words, I am of the view that in the absence of any particulars in paragraph 3 (e) of the further

affidavit of the Applicant, it is not possible for the Court to make a finding that paragraph 3 (e) in contrary to Section 115 of the Evidence Act, 2011. I do not see anything wrong with paragraph 5 of the counter affidavit.

It is worthy to note that the Applicant did not disclose the name of his counsel who dumped him and denied proper representation at the Court below. Also, the name of the Registrar of the lower Court, who initially purportedly told him that the judgment was in his favour has not been disclosed at all. Therefore, based on the averments in paragraphs 4 and 6 of the counter affidavit, there is a very serious doubt about the truthfulness of the Applicant in his assertions that he and his counsel were not in Court when the judgment of the lower Court was delivered or that he never knew right from the onset that it was against him. In this regard, learned counsel Mr. Onyenobi for the Applicant has failed to help matters by snowballing the issue. Whether the Applicant and his Counsel were in Court on the day the judgment was delivered or not, or indeed whatever happened in Court on that day is a matter of record. A CTC of the proceedings of

the lower Court of 24th September, 2018 would have laid the matter to rest. Because he who asserts must prove, it was necessary for the learned counsel Mr. Onyenobi and the Applicant to disclose who the counsel to the Appellant was and to obtain and exhibit the CTC of the record of proceedings to conclusively prove if the Applicant or his counsel were in Court or not. It is preposterous for Mr. Onyenobi, of counsel, to rely on Exhibit B attached to the application as sufficient proof that the Applicant and his counsel were not in Court on 24th September, 2018. Added to the foregoing, paragraphs 11 and 13 of the counter affidavit are very succinct and pungent. They have not been specifically challenged or denied in the further and better affidavit. Likewise paragraphs 8 and 9 of the counter affidavit have not been challenged or denied in any significant and meaningful manner.

An application for extension of time within which to appeal should be supported by an affidavit evidence showing facts which cannot be disputed. I have hereinabove reproduced what I considered the relevant paragraphs of the affidavits of the parties. The Applicant appears to be very

evasive and economical with the truth by failing to identify and give the full particulars of his erstwhile counsel and the Registrar of the lower Court who he claimed appeared to have misled him. In my opinion this failure to furnish particulars is a monumental disaster and fatality to the application. According to the recent decision of the Supreme Court inJ. M. R. LTD V. MT BENEDICTA & ANOR (2019) 12 NWLR (PT. 1686) 323, whenever an Applicant makes any such sweeping claim of failure or wrongdoing in an affidavit against some persons, they are entitled to be confronted with such allegations for their input on its veracity or otherwise.
With respect to the facts and circumstances in the case of J. M. R. LTD V. MT BENEDICTA & ANOR (supra) the Supreme Court, per Galinje, JSC had this to say at pages 340 – 341 paragraphs A – D:-
“Where an applicant for a relief relies on deposition in an affidavit that indicts another person, the applicant must serve the affidavit on that person. Such service is necessary to give the person opportunity of being heard; that is, opportunity to deny or admit the indicting depositions. In this

case, the depositions in the affidavit in support of the applicants’ application accused the applicants’ solicitor ‘s’ clerk of dereliction of duty and serious misconduct in the discharge of her duty. But the affidavit was not served on the clerk who is the only person that can deny or admit the contents of the affidavit as it affects her. In the circumstance, the allegations against the clerk were not established. Consequently, there is no ground on which the applicants’ application can be granted.”
With respect to the facts and circumstances in the instant application, the applicant has alleged what in my view may amount to professional misconduct in the failure of his Counsel at the trial Court to discharge his professional duties to him as required by law, though without giving any particulars at all of who that legal practitioner was. Added to that, the applicant has alleged another wrongdoing by the Registrar of the lower Court who he claimed informed him that Exhibit B was in his favour and only for him to belatedly find out that it was not so. As pointed out above, no particulars of who that Registrar was have

been furnished in the affidavit in support of the application. In the absence of who those persons who misled the applicant were and which led to delay in his appealing within the prescribed period, this Court is faced with difficulty in assessing the accuracy or veracity of the key and material averments in the affidavit in support of this application. The allegations of the applicant against his counsel and the Registrar of the lower Court are very weighty and touch on their integrity. In my view they are fully entitled to be heard before this Court can determine, if it was indeed true that they did all that were alleged against them by the applicant. Without this process of verification, the allegations remain nebulous, mere ipse dixit and not capable of being ascertained. They remain statements that cannot be acted upon for the purpose of exercising a discretion to grant this application.
In the paragraph 3 (d) of the affidavit in support the applicant claimed to have been indisposed without giving any particulars of his indisposition by way of its nature and duration etc. A proper assessment of the illness that could lead to failure to appeal within

the period set out by law can best be made if sufficient and verifiable particulars are furnished. For example, a full and authenticated medical report could have done well in the circumstance for an objective and informed view of the health status of the applicant in the period under review. The exercise of discretion by a Court of law is not and should not be capricious whimsical, arbitrary or subjective. No, it must be based upon a very balanced fair and just exercise of the power of the Court.

Having now considered all the key and material facts adduced by the applicant as the reasons for his failure to appeal within the time prescribed by the law, I have found them to be lacking in integrity, veracity, accuracy or truthfulness. The reasons fall far short in explaining the delay of failure to appeal within time. It is not enough to make nebulous and unfounded and unverifiable statements to support an application for extension of time to appeal. In my view what is needed of an applicant in this circumstance are very objective, cogent and verifiable facts to support the application. The applicant has woefully failed to convince the Court on why he

failed to appeal within the stipulated period of 3 months. I therefore see no reason to proceed to consider the second essential requirement in an application of this nature and as explained hereinabove. It is for the above reasons that I find no merit in this application. I therefore refuse to grant it and it is accordingly dismissed. I order for N30,000 costs against the applicant in favour of the Respondents.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the Ruling just delivered by my learned Brother, ALI A. B. GUMEL, and I am in agreement with the reasoning and conclusions reached in refusing to grant the Application on the ground that same is lacking in merit. I also abide by the consequential orders made thereto.

ABUBAKAR MAHMUD TALBA, J.C.A.: I read the draft of the Ruling just delivered by my learned brother ALI A.B. GUMEL JCA. I agree with his reasoning and conclusion. Having made an allegation against a counsel and the Registrar Of the Lower Court in the affidavit in support, it behoves on the applicant to supply the particulars of the counsel and the Registrar, so that they can be given an opportunity to deny or admit the indicting

depositions. Without such verification it would be wrong for the Court to exercise its discretion to grant the application. The Court does not exercise its discretion in vacum but based on verifiable facts and material presented before it. It is for the reasons my learned brother GUMEL JCA has so clearly stated therein and the conclusions arrived thereat, that I too find no merit in this application.

I also refuse to grant it and it is accordingly dismissed. I abide by the order for cost.

Appearances:

Mr. P. C. Onyenobi For Appellant(s)

Mr. A. A. Fingilla For Respondent(s)