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  • 2002-07-29
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Bamigboye v. Awoyinka

JOHN AKINWOYE BAMIGBOYE

ADEOYE GABRIEL

ADEFILA RAIMI

CHIEF ABIODUN ELEMIKAN

V

CHIEF JAMES ADEKOLA AWOYINKA

EZEKIEL AWOYINKA

( For themselves and on behalf of Igbo-Ogun family of Otun-Ekiti)

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA  ( Read the Lead Ruling )

WALTER SAMUEL NKANU ONNOGHEN, JCA

CA/IL/82/99

TUESDAY, 26TH MARCH, 2002

ACTION -  Party in a case - Who is

APPEAL - Constitutional right of appeal - Free exercise of by parties Whether can be hindered by court

APPEAL - Issues not raised at the lower court - Power of appellate court to grant leave to argue same on appeal

APPEAL - Leave to raise entirely new case on appeal - Rationale for refusing same

EVIDENCE - Affidavit evidence - Uncontroverted affidavit - Effect of

LEGAL PRACTITIONER - Counsel swearing to an affidavit - Need to avoid so doing

WORDS AND PHRASES - ‘A party’ - Who is

Issues:

1.            Whether there is still a competent appeal pending before this court in view of the death of two defendants in the lower court.

2.            Considering the jurisdiction vested in this court by section 240 of the Constitution of the Federal Republic of Nigeria, 1991, whether this court can entertain fresh issues as prayed for in the appellant’s motion dated 4th May, 2001.

Facts:

Judgment was given in favour of the respondents as plaintiffs against the appellants as defendants in the lower court. Dissatisfied with the judgment the 2nd to 5th defendants now the applicants filed an appeal against the judgment and decisions contained therein. The appellants brought motion on notice dated 15/03/2001 to amend their notice and grounds of appeal. Also for an extension of time within which to file their brief of argument. The respondents opposed the application on the ground that some of the grounds which the applicants are seeking to file raised fresh issues which were not canvassed in the lower court. Further, that the applicants did not seek leave to raise the issues and consequently, no leave has been granted. As a result of this objection by the respondents, the applicants as a precautionary measure on 4/05/2001 applied for leave to raise the issues covered by the said grounds of appeal. The application notwithstanding, the respondents on 7/05/2001 applied for the appeal to be struck out on the ground that “the major parties in the case are dead.”

The ruling is sequel to the above three applications made by the learned counsel for the parties which motions were consolidated.