Legal Nuggets (87):APPLICATION(S)/MOTION(S): Instance When an Application will be Deemed to be Competent- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI




APPLICATION(S)/MOTION(S): Instance when an application will be deemed to be competent

"The said Order 2, Rule 28 (1) of the Supreme Court Rules 1999 (as amended) under which the applicant is anchoring stipulates thus: "28 (1): Every application to the Court shall be by notice of motion supported by affidavit. It shall state the rule under which it is brought and the ground for the relief sought". I agree with Mr. J. B. Daudu SAN that the appropriate related Order and Rule is Order 2, Rule 9 (1) of the Rules of the Supreme Court (supra) and that is as follows:- "9 (1): A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time" It is interesting that the respondent who is throwing stones at the purported incompetence of the grounds of appeal of the appellant is coming from an imperfect motion with the said objection containing nothing, as there is no written address upon which arguments were made in that regard. He just filed the motion impugning the grounds of appeal without more and failed to have incorporated arguments on the objection in his respondent's brief of argument. Anyway, the motion cannot be declared incompetent though not properly positioned in the appropriate rule of Court, Order 2, Rule 9 (1) precisely and so, I am at one with the lead ruling that the applicant can place his motion on the preliminary objection in his brief of argument, since technicality will not take the place of substantiality." Per PETER-ODILI, J.S.C. (Pp. 15-16, Paras. A-B)

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