ROTIMI & ORS. V. MACGREGOR

• Pages: 270-273

270

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NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

(iv)an affidavit filed before the application was made to the court for leave ver-

ifying the facts relied on to support the grounds on (iii) above.

It is clear that the learned trial Judge did not give consideration to the observ-

ance and compliance with these pre- requisites to granting of the leave sought. In

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fairness to the learned Acting Director of Public Prosecutions, who appeared for

the respondent, ne agreed that the affidavit which was filed along with the motion

was definitely no: in compliance with the rule and therefore the order made by Ig-

hodaro, J. could not be said to have been made under 0.52, r.2. That by itself

should have been enough to dispose of this appeal.

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The learned vial Judge in his ruling after setting out some of the requirements

necessary to support the application stated inter alia:-

'The application before me is supported by a affidavit of 23 paragraphs filed

by the Acting Director of Public Prosecutions and verified by the affidavits and

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attachments of Mr. Justice Atake, Boyo's letter No. CV. 135, addressed to the

Chief Justice, Mid-West State, the affidavits of Mr. W.G. Egbe, Mr. O.N. Re-

wane and G.N. Peregha, arid a copy of "the letter written to Boyo asking him

to tender an apology."

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It is evident that all the annexures which the learned trial Judge has made ref-

erence to were not affidavits sworn to by the different individuals mentioned with

the purpose of verifying the grounds on which application was made and when

the annexures are read along with the only affidavit sworn to by the Acting Direc-

tor of Public Prosecutions, they could be no more than secondary evidence, being

copies of purported affidavits and therefore not legal evidence as provided for by

law.

During the hearing of this appeal, two grounds were argued. Apart from other

considerations, it is enough to say that since the order purported to be made under

0.52. r.2 was mada without the learned Judge first satisfying himself that all con-

ditions precedent

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making the application had been fulfilled, the order made by

him must be set aside and is hereby set aside.

The appeal is therefore allowed.

Appeal allowed.

ROTIMI & ORS. V. MACGREGOR

40

COLONEL OLUSEGUN ROTIMI AND ORS

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APPELLANTS

V

MRS F.O. MACGREGOR

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RESPONDENTS

SUIT NO. 112/1970

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SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

LEWIS,

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J.S.C.

SOWEMIMO,

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J.S.C.

13th November, 1970

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Land Law - Declaration - Title to land - Application for interim injunction -

No pleadings ordered or filed - No Plan showing precise area of land in

dispute and whether Judge right in granting prayer.

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