Alhaji Ibrahim Idris & Ors V. Prince Abubakar Audu (2004)

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T. MUHAMMAD, J.C.A.

The applicants herein prayed for the following reliefs:

“(a) Extension of time within which to apply for leave to appeal;

(b) Leave to appeal;

(c) Extension of time to file the notice and grounds of appeal;

(d) An order deeming the attached notice and grounds of appeal as properly filed and served;

(e) An order staying further proceedings of the suit in the lower court pending the determination of this appeal;

(f) An order directing a departure from the rules of this Hon. Court so that the appeal can be heard on the bundle of documents attached to the affidavit in support and marked exhibit ‘J’.

(g) An order accelerating the hearing of this appeal by reducing the time limits specified for filing of briefs of argument.”

The application was brought pursuant to section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. Section 25(1- 4) of the Court of Appeal Act, 1976, Orders 3(4), 6(11), 7(2) of the Court of Appeal Rules and the inherent jurisdiction of the court.

The grounds for the application are as follows:

“1. The decision being appealed against is an interlocutory one.

2. Some of the grounds of appeal are of mixed law and fact.
3. The appellants/applicants’ application for leave to appeal filed at the lower court was set-down for hearing on 23rd February, 2004 by which date, time within which to appeal had lapsed.
4. The said appellants/applicants’ application to appeal which was set down for hearing on 2nd February, 2004, was dismissed on the same date by the lower court for being out of time.
5. Leave of this Honourable Court is now necessary for the appellants/applicants’ appeal to be competently filed.
6. The substantive suit at the lower court has been fixed for March 11, 2004, for hearing.
7. Taking further proceedings in this matter at the lower court would prejudice the appellants/applicants as they would not have a fair hearing.
8. Taking further proceedings in this matter would foist a situation of helplessness on the Court of Appeal and render the appeal nugatory.
9. It will take a very long time for records to be compiled at the lower court and briefs of argument filed by the parties.”

While moving the motion, learned Senior Counsel for the applicants, Chief Bayo Ojo said that the motion was supported by a Six paragraph affidavit sworn to by Toyin Aladegbami and accompanied by Seven exhibits (Exh. ‘A’ – ‘G’). Two further affidavits in support of the motion were also filed by learned SAN for the applicants.

Learned SAN relied on all the depositions in the affidavits and the accompanying exhibits. The learned SAN submitted that it became necessary for the applicant to seek leave of Court of Appeal as the appeal is on mixed law and fact. Learned SAN said that they complied with the provision of Order 3 rule 3(4) of the Court of Appeal Rules, 2002, which makes it mandatory to apply to the lower court first. The lower court dismissed their application and he now seeks for the leave from this court.