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Home » Nigerian Cases » Court of Appeal » Gabriel Emaikwu Adah V. John Oko Adah (1999) LLJR-CA

Gabriel Emaikwu Adah V. John Oko Adah (1999) LLJR-CA

Gabriel Emaikwu Adah V. John Oko Adah (1999)

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Muhammad, J.C.A.

On the 6th day of May, 1997, this court delivered its judgment in appeal No. CA/J/112/96. Dissatisfied with our decision, the applicant herein appealed to the Supreme Court. His appeal to the Supreme Court was filed within time. On 24th March, 1998, the applicant filed a motion on notice asking for the following relief:

“1. An order granting the appellant/applicant leave to file an additional ground of appeal on mixed law and facts to the Supreme Court.

  1. Any other order the Honourable court deems fit to make.”

The motion is supported by a 5 paragraphs affidavit and a further affidavit of seven paragraphs. Mr. Ikpe learned counsel for the applicant relied on the two affidavits and moved in terms of the motion paper and also submitted that since no counter-affidavit was filed, the court should grant the application.

Mr. Osho learned counsel for the respondent opposed the motion. He submitted that this court has no jurisdiction to grant the application because the appeal has been entered in the Supreme Court and as his court is functus officio. He urged the court to dismiss the application.

The court then asked Mr. Ikpe whether the appeal has indeed been entered in the Supreme Court. Mr. Ikpe confirmed that the appeal has been entered in the Supreme Court and added that he had in fact filed the appellant’s brief at the Supreme Court. From the affidavit in support it is clear that the appeal has been entered in the Supreme Court as Appeal No. SC.109/97. It was also deposed in the affidavit in support that a similar application was filed in the Supreme Court on 19/9/97 and argued on 2/3/98 and that the appellant was asked to seek the leave of the court of appeal. The ruling of the Supreme Court was attached to the motion as Exhibit ‘C’.

See also  Hakimi Boyi V. Magaji Hassan (2001) LLJR-CA

Exhibit ‘C’, the ruling of the Supreme Court is a very short ruling. I will therefore reproduce it in full. It reads:

“The application to file proposed additional ground 4 having been withdrawn is struck out. N1,000.00 costs to respondent”.

It could be seen from the ruling that the application was withdrawn and that was the reason it was struck out. Nowhere was it stated that the applicant should apply to this court.

It is trite that where an appeal has been entered in the Supreme Court, any application must be made to the Supreme Court. See Biocon Agrochem (Nig) Ltd v. Kudu Holding (Pty) Ltd. (1996) 3 NWLR (pt.437) 373 at page 380 where Kutigi J.S.C. said:

“I must also add that the true position here is that this court has already received the record of appeal complied by the appellants/applicants and the appeal having been entered in the cause List; any application thereof including applications for stay of proceedings should be made direct to this court (See: Coker v. Adeyemo & Anor (1965) 1 All NLR 120.”

Since the appeal has been entered in the Supreme Court, any application must be made direct to the Supreme Court. This court has no jurisdiction to entertain the application. It is hereby struck out. I make no order as to costs.


Other Citations: (1999) LCN/0837(CA)

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