Abi Yarkwa & Ors V. Barta Shallangwa (1996)

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ORAH, J.C.A. 

The appellants/applicants brought an application on notice dated 31st April, 1995 and filed on 16/5/95 in the Court of Appeal pursuant to Order 3 Rules 3 and 4 the Court of Appeal Rules 1981 (as Amended) and Section 6(6)(A) of the Constitution of the Federal Republic of Nigeria 1979 (as Amended) praying the court for the following orders:-

(1) An order extending time within which to apply for leave to file Grounds of Appeal on facts and/or mixed law and facts.

(2) An order for leave to file additional grounds of appeal on facts and/or mixed law and facts as appeared in the attached proposed additional grounds of appeal marked Exhibit “B”.

(3) An order for leave to amend the NOTICE and GROUNDS OF APPEAL by substituting grounds 1, 2, 3 and 5 filed without leave of court with additional Grounds 1, 2, 3 and 5 as appeared and underlined in the proposed Amended Notice and Grounds of Appeal marked Exhibit “C”.

(4) Any such further of other Order(s) as this Honourable Court may deem expedient in the circumstances.

The application is supported by an 8 paragraph affidavit sworn to with the consent of his employers and the appellant/applicants by one Sunday Ali, a litigation secretary in the law Chambers of Messrs Kyari.

Annexed to the affidavit in support of the application are three (3) Exhibits “A”, “B” and “C”.

(1) Exhibit “A” is the Original Notice of Appeal dated the 19th of October, 1993. consisting of 5 grounds of appeal of which grounds 1,2, 3 and 5 are grounds of fact, and/or mixed law and fact while ground 4 is a ground of law (see paragraph 5 (a) of the affidavit in support).

(2) Exhibit “B” is the proposed Additional Ground of Appeal dated the 31st of April, 1995, of ground of appeal which are grounds of fact and/or mixed law and facts (see paragraph 5(a) of the affidavit in support).

3) Exhibit “C” is the “Proposed Amended NOTICE OF APPEAL: ORDER 3 RULE 2”, dated the 31st day of April, 1995 consisting of 5 grounds of appeal of law, and/or mixed law and facts.

The application came up before us for hearing on the 6th of January, 1996.

Jeo Kyari Gadzama, learned counsel for the appellants/applicants moved the application in terms of the motion paper and the affidavit in support, upon which he relied and referred to Exhibits’ A’, ‘B’ and ‘C’ aforesaid. In summary, counsel for the appellants/applicants submitted as follows:-

(i) That the original Notice and Grounds of Appeal Exhibit ‘A’ consisting of grounds of facts and/or mixed law and fact filed without leave of court is competent. It is covered by Section 220(1)(b) of the 1979 Federal Constitution of Nigeria to which Section 221 is subject.