Granted that the respondent had filed a motion dated 8th June, 2006 praying the lower Court to strike out the appeal which preceded the appellants' motion of 11th January, 2008, the normal practice of the Court of Appeal is to hear the application which seeks to preserve the appeal rather than take the motion to strike out the appeal.
AFOLABI FAJEBE & ANOR v. ISAAC ADEBAYO OPANUGA LGC(11/01/2019) H
It is now trite that a case of a party is considered and granted on the relief he has asked for as the other party or opponent is entitled to know the case being presented and which he has to meet. This is an elementary but rather a fundamental principle of the adversarial system of adjudication that impels an applicant to be bound by the prayers in his motion. Therefore a party who has come before the Court seeking a certain known relief cannot change that case at will in each Court as he goes along whether at the trial or on appeal. See Okoya v Santilli (1990) 2 NWLR (Pt.131) 172; A.C.B. Ltd v A.G. Northern Nigeria (1969) NMLR 231; Ojoh v Kamalu (2005) 18 NWLR (Pt.958) 523; Zaboley Int'l Ltd v Omogbehin (2005) 17 NWLR (Pt.953) 200.
FIDELITY BANK PLC V. THE M.T TABORA &
It is well settled that if a Court makes an order dismissing an appeal when there is an application for extension of time to regularize the appeal, the Court should not hesitate to pronounce its order as null and void. This, the Court can do by invoking its inherent jurisdiction to correct the obvious mistake by stating that the appeal is pending, provided application is made to the Court as has been done in this case.
My lords, where there are two applications before the Court, one to dismiss the case for not taking necessary steps and the other (Motion filed on 22 June 2016 prior to Motion for dismissal) for extension of time, or and leave to take necessary steps to regularize the suit, the motion which would allow the Court to pursue substantial justice would be heard first. This procedure has its roots in common sense, prudence and equity, and if such a procedure is followed cases would be resolved on the merits rather than on technicalities. See Consortium M.C. v. NEPA (1992) 6 NWLR (PT. 246) P. 132
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