E.A. Malari & Ors V. Dr. Richmond Sisan Leigh (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

By a motion on notice filed on the 25th day of May 2017, (simply referred to herein as “the motion”) the applicants ask this Court for the grant of the following reliefs:

1) AN ORDER of this Hon. Court extending the time within which the appellants/applicants may seek leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Division delivered on the 13th February, 2012 in Appeal No. CA/B/23M/2010. E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh which ruling dismissed the appellants/applicants motion which seeks extension of time within which they may appeal against the judgment of the trial High Court delivered on the 5th May, 2006.

2) AN ORDER of this Hon. Court granting appellants/applicants leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 in Appeal No. CA/B/23M/2010 dismissing the Appellants’ Application for extension of time within which they may appeal.

1

3) An ORDER of this Hon. Court extending the time within which the appellants/applicants may appeal against the ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 in Appeal No. CA/B/23m/2010 dismissing the appellants application for extension of time within which they may appeal.

4) AN ORDER striking out the names of E. A. Malari (Deceased), Olaraja Evenuberu Emami (Deceased) and Pa Agbekuku Mone (Deceased) who are 1st, 8th and 9th appellants/applicants respectively in this appeal.

In moving the Motion, learned counsel for the applicants, Mr. Erhabor stated that the motion is predicated on six (6) grounds and supported by a thirty(30) paragraphs affidavit, sworn to by one Chukwudi Nzediegwu. He also filed several further or further and better affidavits in support. He attached along with the affidavits several exhibits. Learned counsel filed a list of additional authorities. He filed a written (brief) address in support of the motion. He adopted and relied on all the paragraphs of the affidavits in support and the written address. He urged this Court to grant the motion.

In opposing the motion, learned counsel for the

2

respondent, Mr. Patrick Oganwu stated that he filed a counter affidavit sworn to by one Dr. Richmond Sisan Leioh: several further counter affidavits all with attachments as exhibits. He filed a written address in opposition to the motion. Learned counsel relied on all the averments in the counter affidavits and adopted the written address. He urged this Court to refuse the motion.

In the written address filed, learned counsel for the applicants argued the motion through issues which he formulated, thus:

1. Whether there was compliance with Sections (sic) 233(3) of the 1999 Constitution and Order 2 Rule 28(4) of the Supreme Court Rules.
2. What is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal ()

After setting out the Constitutional Provisions, the Supreme Court Act as contained in Cap. S15, LFN, 2004 and the Supreme Court Rules, pursuant to which the motion was brought, the learned counsel submitted on issue one that an application for leave to appeal is an appeal and that by the provisions of Section 27(2)(a) of the Supreme Court Act, the applicants had three months to appeal against the decision of the Court

3