based on the reasons stated therein including but not limited to the awareness or
better understanding garnered by Counsel from the 7th Judicial Retreat of this
Honorable Court at Owerri, Imo State as it concerns proper parties before the
Court. On the 19th day of October, the 1st, 2nd, 6th and 7th Respondent their
“COUN TER AFFID AVIT IN SUPPOR T OF ARGUMEN T AGAINST
MOTION
ON
NOTICE
FOR
THE APPLICANTS
st
nd
th
WITHDRAWAL/OR DISCONTINUA NCE” Obviously, the 1 , 2 , 6 and
7th Respondents do not understand
applicants’
application
as
they
misconstrued
it
to
be withdrawal/discontinuance simpliciter. It is not, it is
application for leave……”
“The term leave is defined by the Nigerian Supreme Court in the case of Broad
Bank Nigeria Limited VsOlayiwola& Sons Limited (2005) 4M.J.S.C 133 at 143
paragraph E per I. C. Pats-Acholonu, JSC thus:“The term "leave" in judicial context imports the exercise of the court's discretion
either positively or negatively as it would be outside the bounds of reason to take
for granted that the court would willingly grant an application”
“1.0.2. The Court of Appeal of Nigeria defined leave as spelt out in the case of
ASONIBARE v. MAMODU & ANOR (2013) LPELR-22192(CA) (P. 22 paras. DE) Per DANIEL-KALIO, J.C.A. thus:"Leave of Court" according to Black's Law Dictionary, 9th Edition means "Judicial
permission to follow a non-routine procedure". According to that dictionary, it is
often shortened to "Leave,"
“1.0.3. The Supreme Court of Nigeria also made it clear the consequences of
failure to seek the leave of Court to do an act where leave is required. In the case of
EkanemEkpoOtuVs ACB International Bank PLC (2008) 3M.J.S.C. 191 at 206
paragraph G.
“Where leave is required either in the Constitution or in the rules of Court and
leave is not sought and granted, the Court has no jurisdiction to grant the motion as
it is incompetent”
“1.0.4. A communal reading of paragraphs 1.0.1 to 1.0.3 above will reveal among
other things that a party seeking “leave” of court for a relief has on his own
admitted that the relief sought is not expressly granted by court but derivable
through the court’s discretion exercised judiciously and judicially.”
- 21 “1.0.5. The distinguishing factor in all the cases cited and relied on by the
respondents and applicants’ application here is that while the parties who withdrew
or discontinued those cases made applications to withdraw/discontinue, the
Applicants chose the path of “Judicial permission to follow a non-routine
procedure.” The Applicants are seeking leave of the Honorable Court. Also, the