Dickson Ogbanja & Anor V. Justus Harcourt & Ors (2005)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

In this application, the Appellant is seeking the following prayers:

“1. An order granting leave to the Appellants/Applicants to:

(a) Amend their Notice and Grounds of Appeal by substituting Grounds one and two thereof with the new Grounds one and two as shown in the Proposed Amended Notice of Appeal herewith annexed as Exhibit “A”.

(b) Amend the Index of the Record of appeal already transmitted as follows:

i. By correcting items 27-30 of the original index of Record of Appeal to appear as shown in the new items 27-30 of the proposed Amended Index of Record of Appeal annexed herewith as Exhibit “B”.

ii. By correcting the pagination of the record of appeal already transmitted to reflect the contents of the proposed amended index of record of appeal.

iii. By correcting other clerical errors therein to appear as contained in the proposed amended index of record of appeal.

(c) To compile and transmit additional record of this appeal to wit: Exhibit 20 tendered and admitted at the trial court.

2. An order deeming the Amended Notice of Appeal, Amended index of record of appeal, additional record of appeal and the Appellants’ Brief of Argument already filed in this matter as properly filed and served, the necessary fees having been paid.”

The application was supported by a six paragraph affidavit. The Respondents in opposition filed a thirteen paragraph affidavit deposed to by the 2nd Respondent. The gravamen of the opposition is to be found in paragraph 6 of the counter affidavit which reads as follows: –

“That I am informed by our Lawyer F.U. Unyimadu Esq. by 12noon on 1/1/2014 in his office and I verily believe him as follows:

a. That the Notice of Appeal filed by the Appellants is incompetent.

b. That the Appellants did not pay the fees prescribed by the Rules of this Court for filing of Notice of Appeal.

c. That a defective Notice of Appeal cannot be amended.”