OSINUPEBI V. SAIBU & ORS.

• Pages: 214-218

OSINUPEBI V. SAIBU & ORS.

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214

OSINUPEBI V. SAIBU & ORS.

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B.O. TAIWO OSINUPEBI

V

10 QUADRI SAKA SAIBU & OTHERS

APPELLANT

RESPONDENTS

SUIT NO. SC 3/1982

SUPREME COURT OF NIGERIA

SOWEMIMO,

IDIGBE,

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OBASEKI,

ANIAGOLU,

UWAIS,

9th July, 1982

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

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Civil Procedure - Appeals to Supreme Court - Amendment of writ of summons

at hearing of appeal - Inappropriate case - Dismissal of appeal for want of

prosecution - Failure to file brief relating to original grounds of appeal and to

show special circumstances ju:ctifying substitution of grounds of appeal contained

in appellant's brief for original grounds.

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ISSUE:

1. Whether special circumstances have to be shown before an application to

amend and substitute grounds of appeal can be granted.

FACTS:

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The Appellant applied for leave to substitute and argue new grounds of appeal

contained in the briefs of arguments already filed for the grounds appearing on

the record of appeal and to amend the writ of summons.

HELD:

1.

If the application is granted it would amount to an extension of time for filing

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appeal from the Federal Court of Appeal. It has been held that when such an

application is made special circumstances should be shown why it should be

granted. No special circumstances were shown in the affidavit sworn in support

of the motion paper. The application is refused.

2.

One of the principles upon which this court allows any application for extension

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of time to file grounds of appeal or substitute new grounds for those already

filed is that the court must satisfy itself that there is an arguable appeal i.e. after

studying the grounds of appeal against the judgment which the appeal seeks

to challenge. In this case there is no arguable appeal.

3.

With regard to the application for amendment of the writ of summons, the

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amendment sought is one which should have been made in the High Court

before final adjudication on the issue of declaration, to enable parties to amend

their pleadings if granted. Since the issues between the parties were joined

and tried in the High Court and the judgment of the learned trial Judge and the

Federal Court of Appeal were given on that basis, to grant the amendment

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sought would alter the character of the case as considered by the courts below.

This application is also refused.