Daniel Ihibe Omede V. Union Bank Of Nigeria PLC (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A.(Delivering the Lead Ruling)

The application for our consideration is by way of Motion on Notice brought pursuant to Order 7 Rule (1), Order 20 Rules (2) and 3(1) of the Court of Appeal Rules 2011, Section 15 of the Court of Appeal Act, 2011 (now Section 16 of the Court of Appeal Act, 2011) and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

The application is supported by a 4 paragraph Affidavit and a Further and Better Affidavit of 4 paragraphs also paragraph 3 of the Supporting Affidavit has sub-paragraphs A-0 whilst paragraph 3 of the Further and Better Affidavit has six sub-paragraphs. Three Exhibits are also annexed to the application in support.

The application is praying for the following orders:

“1. An order of this Honourable court setting aside its order of 9th April, 2013 dismissing the Appellant/Applicant’s appeal.

2. An order of this Honourable court re-listing the Appellant/Applicant’s appeal.
3. And for such further or other orders this Honourable court deems fit to make in the circumstances”.

The application is predicated on five grounds and they are:

“GROUNDS OF THE APPLICATION

(1) The Appellant/Applicant’s appeal was dismissed on 9th April, 2013 for lack of diligent prosecution and he desires it relisted to enable him prosecute same.

(2) That when the Appeal came up on the 9th of April 2013, the Appellant/Applicant was not served with hearing notice notifying him that the appeal will come up on the said date.

(3) The Appellant/Applicant had filed his motion for extension of time and brief of argument before it was discovered that the appeal had been dismissed in his absence.

(4) The Appellant/Applicant was not given fair hearing when the court dismissed the appeal.

(5) The Appellant/Applicant desires to prosecute his appeal on the merit.”

It is instructive to note that when the application was served on the Respondent, they opposed it and filed a counter-affidavit consisting of 12 paragraphs.

On the 19/11/2013, when the application came before us for hearing learned Counsel for the parties adopted their written addresses which had been earlier on ordered by the Court on 26/6/13. However before they did that, each Counsel placed reliance on the contents of the Affidavits, they placed reliance in support of their respective positions.