CORAM

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OBASEKI, JUSTICE SUPREME COURT

SAIDU KAWU JUSTICE, SUPREME COURT

AYOOLA JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALL JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT

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PARTIES

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NALSA & TEAM ASSOCIATES APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The appeal is against the decision of the court of appeal to grant an application to extend time within which an appellant can seek leave to appeal without the specific prayer contained on the motion paper. This was subsequent to the filing of the said appeal to which the respondent has filed a preliminary objection to. Upon refusing the P.O by the court of appeal, the respondent/appellant has now appealed to the Supreme Court on these two issues.

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HELD

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The court upheld the preliminary objection and set aside the order of the Court of Appeal. ?

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ISSUES

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1. Whether the Court of Appeal was right in refusing to take first the appellant’s Notice of Intention to rely upon a preliminary objection and in taking first the respondent’s application for extension of time, taking into consideration the crucial nature of the appellant’s application. 2. Whether the Court of Appeal was competent to foist upon a Notice and grounds of appeal that was indisputably invalid and therefore void, an application for extension of time within which to obtain leave to appeal and then to order that the said incompetent and grounds of appeal be deemed properly filed.

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RATIONES DECIDENDI

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PRIORITY OF APPLICATIONS

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“where there are two applications before the court, the one which may prevent the court from hearing the substantive case before it on the merits must be taken first” (Per Nnaemeka-Agu JSC)

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EXTENSION OF TIME WITHIN WHICH TO APPEAL

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“Without a prayer asking the court to invoke its statutory power to extend time to appeal as contemplated by section 25(4) of the Court of Appeal Act, 1976, or section 31(4) of the Supreme Court Act, 1960, neither court has power to deem any invalid or incompetent notice of appeal as having been duly file” (Per Nnaemeka-Agu JSC)

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PROCEDURAL IRREGULARITY- HOW TREATED

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It is settled that any irregularity which derives from a breach of the rules of practice and procedure or of an order of court made thereon does not render the proceedings a nullity but a mere irregularity

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CASES CITED

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1. United Bank for Africa Limited. v. Dike Nwora (1978) 11 & 12 SCI.2. Timothy Adeilo Adefulu & Ors. v. Bellow Oyesile & Ors. (1989) 5 NW LR. 377, at p.4173. Fari Kwaham v. Foud Michael Elias (1960) 5 FSC. 2244. Wallersteiner v. Moir (1974) 3 All ER. 217.5. Ogbu v Urum (1981) 1 All NLR. (part 2) 240.6. Abayi v. Offili (1986) 1 NWLR. (pt. 15) 1347. Ndukwe Erisi & Ors. v. Uzor Idika & Ors. (1987) 9-11 SC. 170

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STATUTES REFERRED TO

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1. The Court of Appeal Act, 1976.2. The Supreme Court Act, 1960.3. The Constitution of the Federal Republic of Nigeria, 1979.

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