NATIONAL BANK OF NIGERIA LTD. VS THE ARE BROTHERS (NIGERIA) LTD

CORAM

EMANUEL OBIOMA OGWUEGBU, JSC. JUSTICE, SUPREME COURT (Read the Leading Judgment)

IRIKEFE, JUSTICE, SUPREME COURT

OKAY ACHIKE JUSTICE, SUPREME COURT

PARTIES

NATIONAL BANK OF NIGERIA LTD.

APPELLANTS

THE ARE BROTHERS (NIGERIA) LTD

RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURE-APPLICATION FOR EXTENSION OF TIME

SUMMARY OF FACTS

The appellants filed a winding-up petition against the appellants. The respondents filed an affidavit in reply after time for reply had lapsed and contended that time began to run only after negotiations between them broke down. They did not apply for extension of time.

HELD

The court held that conflict in an affidavit was only to resolved by oral testimony on oath and extension of time should not be granted by a court suo motu

ISSUES

Whether the learned trial judge was right to grant the respondents an extension of time only because the appellant failed to file a counter- affidavit to the averment that the appellant was responsible for the delay and hold that the averment was sufficient explanation for the delay.

RATIONES DECIDENDI

PROCEDURE FOR GRANTING EXTENSION OF TIME

Although the court has an inherent jurisdiction to extend time in any given case with a view to avoidance of injustice to any of the parties, it should not do so suo motu, but upon the application of the party in default.” PER IRIKEFE JSC

PROCEDURE FOR RESOLVING CONFLICTS IN AFFIDAVIT EVIDENCE

“Where a court is called upon to act upon affidavit evidence and such evidence is in conflict on a point material for the determination of the case, such conflict can only be resolved by the court calling for oral testimony on oath from the parties. It would not be open to the court to accept the last affidavit in point in time as the true position of matters merely because the other had failed to lodge a counter-affidavit. PER IRIKEFE JSC