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

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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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motion on notice

WHERE SOME GROUNDS OF APPEAL ARE TO BE CHALLENGED, NOT A PO, BUT A MOTION ON NOTICE

It is now trite law that a motion on notice is filed where a party intends to challenge the incompetence of one or two grounds of appeal in the presence of an existing valid ground(s), see Garba v. Mohammed (2016) NWLR (Pt. 1537) 114; Kente v. Ishaku (2017) 15 NWLR (Pt. 1587) 96; PDP v. Sheriff (2017) 15 NWLR (Pt. 1588) 219; NNPC v. Famfa Oil Ltd. (2012) LPELR 7812(SC), (2012) 17 NWLR (Pt. 1328) 148; Cocacola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74; Ezenwaji v. UNN (2017) 18 NWLR (Pt. 1598) 45; Petgas Resources Ltd. v. Mbanefo (2018) 1 NWLR (Pt. 1601) 442; KLM Royal Dutch Airlines v. Aloma (2018) 1 NWLR (Pt. 1601) 473; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 14 175; Lawanson v. Okonkwo (2019) 3 NWLR (Pt. 1658) 77. UBN PLC V. Ravih Abdul & Co. Ltd. (2019) 3 NWLR (Pt 1659) 203; FRN v. Atuche (2019) 8 NWLR (Pt. 1674) 338; Lolapo v. COP (2019) 16 NWLR (1699) 476. Opeyemi v. State (2019) 17 NWLR (Pt. 1702) 403. I have married the meat of the objection with the inelastic position of the law displayed above. The wisdom behind the comparison is not far-fetched. It is to ascertain if the objection is obedient to the law or desecrates it. An in-depth study of the objector’s objection, discernible from its arguments thereon, clearly, reveals that it mainly chastises the appellant’s grounds 2, 3, 7 and 11 of the notice of appeal. It is obvious that the objector’s objection spared grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 of the notice of appeal. In other words, those grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19 are viable and valid with the potency to sustain the appeal. In the face of the existential validity of grounds 1, 4, 5, 6, 8, 9, 10, 12 – 19, the objector ought not to have filed a preliminary objection. The proper/appropriate process is an application (motion on notice) challenging the viability of those grounds.

— O.F. Ogbuinya JCA. Stanbic IBTC Bank Plc v. Longterm Global Cap. Ltd. & Ors. (September 20 2021, ca/l/1093/2017)

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

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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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 CANNOT GO OUTSIDE THE TERMS/ORDERS OF THE MOTION

The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed. (Commissioner for Works Benue State v. Devcon Construction Co. Ltd. (1988) 3 N.W.L.R. (Pt.83) 407 at 420). Since there was nothing to stay, the Court of Appeal was in error to have made the order prayed for.

— Agbaje JSC. Okoya & Ors. V. S. Santilli & Ors. ( SC.206/1989, 23 MAR 1990)

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