ADEYEMI V. FAPAMISI & ORS.

• Pages: 1279-1283

ADEYEMI V. FAPAMISI & ORS.

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1279

was wrong in refusing to amend the notice of appeal and deciding the appeal on

the ground that there was no relief.

The appeal is therefore allowed. Leave is hereby granted appellant to amend.

The notice of appeal is hereby accordingly amended to include the prayer to hear

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the appeal on its merit. Respondent shall pay N300.00 cost to the appellants.

KAWU, J.S.C.

The main issue for determination in this appeal is whether the

application of the appellant before the Court of Appeal to amend his notice of

appeal should have been granted. The record shows that the appellant's counsel

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drew the attention of the Court of Appeal to the defect in the notice of appeal which

he sought leave to amend. His application was refused even though he cited in

support of that application certain decisions of the Supreme Court, such as

Nofiu

Surakatu v. Nigerian Housing Development Society Ltd.

(1981) 4 S.C. 20 and

Udo

Ekwere v. The State

(1981) 9 S.C. 4. The omission on the part of the appellant to

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state the nature of the reliefs sought in the notice of appeal is, in my view, a non-

compliance with the provisions of Ord. 3 rule 2 of the Court of Appeal Rules, 1981

which non-compliance in the interest of justice, should have been waived by the

Court of Appeal in accordance with the provisions of Ord. 6 rule 3 of the Rules. I

am of the view that the appellant's application to amend his notice of appeal should

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not have been refused. Accordingly the appeal succeeds and it is hereby allowed

and the decision of the Court of Appeal refusing the appellant's application to

amend is hereby set aside. It is directed that the appeal be remitted to the Court

of Appeal for determination on its merit. I abide by the consequential orders made

by my learned brother, Eso, JSC. in his judgment.

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Appeal allowed.

ADEYEMI V. FAPAMISI & OHS.

30

T.F. ADEYEMI

V

35

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ELIJAH FAPAMISI & ORS.

SUPREME COURT OF

NIGERIA

OBASEKI,

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J.S.C.

ESO,

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J.S.C.

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KARIBI-WHYTE,

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J.S.0

KAWU,

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J.S.C.

OPUTA,

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J.S.C.

18th November, 1985

APPELLANT

RESPONDENTS

SUIT NO. SC 208/1984

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Practice and Procedure - Adjournment - Exercise of Court's discretion - Non

receipt of record of appeal - Appeal adjourned for 4 hours to enable counsel

study record loaned Ilim by court but counsel still unable to argue appeal

at reconvened sitting - Appellant estopped by previous judgment - Further

adjournment refused and appeal dismissed on merit - Court's discretion to

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refuse adjournment rightly exercised - Further appeal only against that refusal

and not on merit and dismissed by Supreme Court.