Application for leave to appeal

• Pages: 286-286

286

(26) APPLICATION BROUGHT UNDER A WRONG ORDER

493. Court of Appeal not debarred from considering an application brought

under a wrong order.

“The appropriate rule under which the application ought to have been brought is

order I rule 20 (8) of the Court of Appeal Rule the provision of which have been set

out inextenso in the body of the lead ruling. However, on settled judicial authorities,

the mere fact that the application had been brought under order 3 rule 23 of the

Court of Appeal Rules, which is a wrong order, does not debar this Court from

entertaining the application on its merit.” - Per Aderemi. J.C.A., in Gafaru v. Olaiya

Suit No. CA/L/269/99; (2001) 45 W.R.N. 71 at 77 - 78.

(27) APPLICATION FOR AMENDMENT

494. Grant of amendment, which alters the character of a case.

“The issues between the parties were joined and tried in the High Court and the

judgment of the learned trial judge was given on that basis. The Federal Court of

Appeal considered the appeal before it also in that light. To grant the amendment

sought would alter the character of the case as considered by the Courts below. I do

not think that the provisions of Order 7 rule 26(1) of the Supreme Court Rules, 1977

under which the application was purportedly brought intended for that purpose.” -

Per Uwais, J.S.C., in Osinupebi v. Saibu Suit No. S.C.3/1982; (1982) 13 N.S.C.C.

214 at 218.

(28) APPLICATION FOR LEAVE TO APPEAL

495. Application to file and argue additional grounds of appeal.

“Exhibit “J” the statement of the Police Inspector who held the operation leaves one

in no doubt that he gave the firing order. He was clearly caught by the provision of S.

7(d) of the Criminal Code Law. On the totality of the evidence, the so-called

contradictions were on minor issues which have no bearing on the ingredients of the

offence charged. See The Queen v. Ukut 5 F.S.C. 183; (1960) S.C.N.L.R. 441.

The learned trial judge believed the evidence of P.W.2 and P.W.4 as being those of

eyewitnesses after the whole evidence. The appeals lack merit. The grounds of

appeal filed and argued did not address themselves to the fact of the case.” - Per

Ogwuegbu, J.S.C., in Peters v. State Suit No. S.C. 79/1992; (1992) 23 N.S.C.C.

(Pt. III) 411 at 417; (1992) 9 N.W.L.R (Pt. 265) 323 at 332.

(29) APPLICATIONS AT THE COURT OF APPEAL

496. Application at the Court of Appeal.

“Order 3 Rule 3(4) of the Court of Appeal Rules provides that wherever an application

maybe made either to the Court below or to the Court of Appeal, it shall not be made

in the first instance to the Court of Appeal, except where there are special

circumstances which make it impossible or impracticable to apply to the Court below.

Paras. 493-496