Chevron Oil Nigeria Plc. V. Zenon Petroleum And Gas Ltd & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling)

The appellant/applicant has, by a motion on notice dated 22nd and filed on the 23rd November 2010, sought for the following reliefs:

“i. An order granting leave to the appellant/applicant to amend the notice of appeal dated 15th April, 2009 in the manner reflected in the proposed amended notice of appeal attached to the affidavit in support of this application and marked as Exhibit “B”;

ii. An order granting leave to the appellant/applicant to amend its brief of argument in line with the proposed amended appellant’s brief of argument attached to the affidavit in support of this application and marked as Exhibit “C”;

iii. An order enlarging/extending the time within which the appellant/applicant may file its amended brief of argument;

iv. And for such further or other order(s) as this honourable court may deem fit to make in the circumstances of this application.”

The application is premised on the following four grounds:-

“1. Leave of this Honourable court is required to amend the appellant/applicant’s notice of appeal and to include an additional ground of appeal;

2. There is need to amend the appellant’s notice of appeal to effect some corrections as well as to include an additional ground on jurisdiction;
3. There is need to amend the appellant’s brief of argument in line with the amended notice of appeal;
4. The time within which to file appellant/applicant’s brief of argument has elapsed.”

The application is supported by an affidavit of six paragraphs deposed to by David Udoh. Annexed thereto are three exhibits A, B and C respectively consisting of:-

a) The original notice of appeal dated and filed 15th April 2009 with five grounds of appeal.

b) The proposed amended notice of appeal with six grounds of appeal, and

c) The proposed amended appellant’s brief of argument.

There was no counter affidavit filed to challenge the averments in the supporting affidavit. The learned senior counsel argued that, in the absence of a counter affidavit, the depositions in the supporting affidavit must be regarded as having been admitted.

The law is well settled that depositions in an affidavit are deemed to be admitted and the court is entitled to rely on them as representing the true position of the facts deposed therein unless otherwise traversed by a counter affidavit. In the case of Amgbare v. Sylva (2007) 18 NWLR (Pt.1065) 1 at 30-31 my learned brother Rhodes-vivour JCA (as he then was) aptly observed:-