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ELEMENTS TO SHOW BEFORE EXTENSION FOR GRANT OF TIME WILL BE ALLOWED

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Let me add, before I log out, that a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v. MERCANTLE BANK (1987) 6 S.0 341 at 350. Even where the application is not opposed, the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: NWAWUBA v. ENEMUO (1988) 5 S.C.N.J. 154.

— Ejembi Eko, JSC. County Dev. Co. v Hon. Min. Env. Housing Urban Dev. (2019) – SC.239/2011

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motion on notice

WHEN TO FILE A MOTION ON NOTICE VS PRELIMINARY OBJECTION

In law therefore, it is only when a Respondent is challenging the one or more grounds of appeal but not the entire appeal that resort must be had to motion by notice to strike out the incompetent ground(s) of appeal. However, where it is the competence of the entire appeal that is being challenged the proper method is by means of a notice of preliminary objection as rightly employed by the Respondent in this appeal. The Respondent’s notice of preliminary objection was filed on 23/2/2017, that way beyond the three clear days requirement of the rules of this Court, was served and duly responded to by the Appellant in their Appellants’ Reply brief and therefore, the contention by the Appellants’ counsel in this regards is misconceived and hereby discountenanced. I shall say no more! See Clement Odunukwe v. Dennis Ofomata(2010) 18 NWLR (Pt. 1225) 404 per Rhodes-Vivour, JSC. See also Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314; NEPA v. Ango (2001) 15 NWLR (Pt. 737) 627; Muhammed v. Military Administrator of Plateau State (2001) 16 NWLR (Pt. 740) 524; NDIC v. Oranu (2001) 18 NWLR (Pt. 744) 183.

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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COURT IS TO RULE ON ALL APPLICATIONS BEFORE DELIVERING ITS FINAL JUDGMENT

There is no doubt that the law is settled that where there are pending applications before a court, the court is duty bound to rule on all applications before it before delivering its judgment. There are plethora of authorities in this regard. See Mobil v. Monokpo (2001) FWLR Pt.78 Pg.1210; Mokwe v. Williams (1997) 11 NWLR Pt.528 Pg.309; Savannah Bank Nig. Ltd v. SIO Corporation (2001) 1 NWLR Pt.693 Pg.194.

– H.M. Ogunwumiju, JCA. ITV v. Edo Internal Revenue (2014) – CA/B/20/2013

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MOTION ON NOTICE NOT PRELIMINARY OBJECTION FOR PART COMPLAINT

Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal as in this appeal, and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection.

– A. Aboki, JSC. Sani v. Kogi State (2021) – SC.1179/2019

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WHEN TO USE A PRELIMINARY OBJECTION OR A MOTION ON NOTICE

In BANK OF INDUSTRY LTD v. AWOJUGBAGBE LIGHT INDUSTRIES LTD (2018) LPELR-43812(SC), page 7 para. B-D, per Rhodes-Vivour JSC, reiterated the above principle of law thus: “This Preliminary Objection is against the hearing of this suit. In Isah v. INEC & 3 Ors (2014) 1-2 SC (Pt.iv) p.101. I explained Preliminary Objections and when to file them and when not to file them. I said that: “A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a Preliminary Objection is to convince the Court that the appeal is fundamentally defective in which case the hearing of the appeal comes to an end if found to be correct. Where a preliminary objection would not be the appropriate process to object or show to the Court the defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice.

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AN APPLICANT IS BOUND BY HIS PRAYERS IN HIS MOTION

It is an elementary but fundamental principle of our adversary system that an applicant is bound by the prayers in his motion. See A.C.B. Ltd. v. A.G. Northern Nigeria (1969) N.M.L.R. 231. — Karibi-Whyte JSC. Okoya & Ors. V. S. Santilli & Ors. ( SC.206/1989, 23 MAR 1990)

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SUBMISSION NOT BASED ON GROUND OF MOTION AND AFFIDAVIT WILL BE AT LARGE

The appellant’s learned senior counsel argued the application on the basis of the issues formulated by him and seemed to have abandoned the supporting affidavit. This is clearly not correct. Parties to a motion are bound to restrict their submissions within the confines of the grounds upon which the application is predicated and the affidavits in support of the application. Where issues formulated by parties do not arise from the grounds and the affidavit in support, any argument thereon will certainly be at large and is of no effect.

— P.A. Galinje JSC. Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

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