George Adumu & Ors V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 18th March 2011 and filed on the 24th March 2011, the applicants herein are seeking for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal.

In addition, the applicants are asking this court to stay proceedings in charge/case no. PH/337/2010 now pending at the High Court of Rivers State sitting at Port Harcourt. In support of the motion on notice is a 36 paragraphs affidavit deposed to jointly by the applicants. Annexed to the affidavit are four notices of appeal and a copy of the ruling on a preliminary objection to the ongoing trial of the applicants at the lower court. Parties filed written addresses which they adopted at the hearing of this application.

Mr. A.R. Abdulrahman, learned counsel for the applicants, who also settled the Applicants’ written address formulated one issue only for determination of this application. This issue read as follows:-

“Whether the applicants have adduced sufficient materials so as to influence the undoubted discretion of this Honourable Court for an order granting them leave to appeal, extension of time within which to file notice and ground of appeal etc as prayed on the motion paper.”

Mr. Emmanuel C. Aguma, Learned counsel for the Respondent, who did not file a counter affidavit, filed a brief on the 15/7/2011 in reply to the Applicants submission on points of law. He formulated three issues for determination of the application.

These issues are:

1. whether this application is competent.
2. whether the applicants have placed sufficient material before this court to merit a grant of reliefs 1, 2 and 3 endorsed on the motion paper.
3. whether leave to apply for stay of further proceedings of the trial at the High Court [relief 4] or stay of proceedings ought to be granted.

In reaction to the Respondents written address, learned counsel for the applicants filed a reply on points of law.

Order 18 Rule 3 [1] provides for formulation of issues in a brief of argument in appeals. This Order provides as follows:-

“3 – (1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.”

The issues as provided for under Order 18 Rule 3 [1] must arise from the grounds of appeal. Where they do not arise from the grounds of appeal, they are liable to be struck out. See Lambert v. Nigerian Navy [2006] 7 NWLR [Pt.980] 514. Adejumo v. State [2006] 9 NWLR (Pt 986) 627, Sehindemi v. Gov. Lagos State (2006) 10 NWLR [pt. 987] 1.

There is however no such provision with respect to motions.

Order 7 Rule 1 of the Court of Appeal Rules 2011 provides as follows:-

” Every application to the court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.”