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MOGO CHINWENDU V. NWANEGBO MBAMALI & ANOR

(1980) JELR 33945 (SC)

Supreme Court  •  SC.72/1979  •  28 Mar 1980  •  Nigeria

Coram
AYO GABRIEL IRIKEFE JSC; CHUKWUNWEIKE IDIGBE JSC; ANDREWS OTUTU OBASEKI JSC; KAYODE ESO JSC; ANTHONY NNAEMEZIE ANIAGOLU JSC;

Judgement

A. N. ANIAGOLU, JSC (Delivering the Leading Judgment): This appeal has come before this court for hearing following an application for leave to appeal granted by the Federal Court of Appeal on 2nd May 1978 upon a Motion ex parte filed by the defendant/appellants and made ex parte by reason of the combined effect of Section 117(3)(a) of the Constitution of the Federation No. 20 of 1963 as amended by the Constitution (Amendment) (No. 2) Decree, 1976; Section 8(3) of the Federal Court of Appeal Decree No. 43 of 1976 which applied the 1961 Supreme Court Rules to the Federal Court of Appeal; and Order VII Rule 3(1) of the said 1961 Supreme Court Rules which states that:

"Where an appeal lies only by leave of court or of the court below any application to the court for such leave shall be made ex parte by notice on motion."

Had the motion not been made ex parte and had the respondents been given the opportunity to contest the application, it is doubtful whether, on the facts of the case as …

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