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BARTHOLOMEW MBAGWU v. EVANGELIST MATHIAS OHALETE & ANOR

(2020) LPELR-49543(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of March, 2020

CA/OW/170/2015


Before Their Lordships

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria


Between

BARTHOLOMEW MBAGWU - Appellant(s)

AND

1. EVANGELIST MATHIAS OHALETE
2. GODWIN OHALETE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This is a ruling on an application for leave to raise fresh issues of customary law not raised at the Customary Court.
FACTS:
Appellant/Applicant filed a motion on 9/6/2016, seeking the following orders:
1) An Order granting leave to the applicant to file and argue fresh issues of customary law not raised at the Court below.
2) An order of Court deeming fresh issues of customary law contained in the notice of Appeal dated 15th day of September already filed and served as having been properly filed and served.
3) An order of Court granting leave to the appellant to further raise and argue fresh issues of customary law not raised at the Court below.
4) An Order of Court deeming fresh issues of customary law as contained in the amended notice of appeal already filed and served as having been properly filed and served.
5) An Order of Court granting to the Appellant to further raise and argue fresh issues that touch on jurisdiction not raised at the Court below.
6) An Order of Court deeming fresh issues that touch on jurisdiction as contained in the amended notice of Appeal already filed and served as having been properly filed and served.
???7) An Order of Court granting leave to the appellant to amend the original notice of appeal dated 15th day of September, 2014 in the way and manner set out and underlined on the proposed amended notice of appeal annexed hereto as Exhibit A.
9) An Order of Court granting leave to the Appellant to amend the original notice of appeal dated 15th day of September, 2014 and filed on 23rd day of September, 2014 by adding additional grounds of appeal as set out and underlined on the proposed amended notice of appeal annexed hereto as Exhibit A.
10) An Order of Court deeming the amended notice of appeal already filed and served as having been properly filed and served.
And for such order or further orders..."

???The application was supported by affidavit of several paragraphs, - (1), (2), (3), (a) - (n), 4, 5 and 6, and one Exhibit (Exhibit A). The 1st Respondent, filed a counter affidavit to oppose the application and parties were ordered to file written addresses to articulate their arguments. Appellant/Applicant filed his written Address on 9/6/2016, while the 1st Respondent filed his on 2/5/18 (and same was deemed duly filed on 4/3/19). Reply on points of law was filed on 20/5/18, and was also deemed duly filed, on 4/3/19.
ISSUES:
The Court determined the application on these issues couched as follows:

1) Whether, in the circumstances of this case, the Appellant/Applicant is entitled to be granted leave to raise and argue the issues raised in grounds 1, 2 and 3 of the Appellant's Notice of Appeal filed on 23/9/14.

2) Whether, in the circumstances of this case, the Appellant/Applicant is entitled to be granted leave to file and argue the additional grounds of appeal, numbered as Grounds 10,11 and 12 in the proposed Amended Notice of Appeal?

DECISION/HELD:
On the whole, the Court found no merit in the application and accordingly refused to grant same.


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