John Obi V. Udochukwu Ojukwu & Anor. (2009)

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SULEIMAN GALADIMA, J.C.A.

By his motion on Notice dated 15/12/2004 and filed on 17/12/2004, the Applicant prays this court for the following reliefs:

“1. An order extending the time within which the Applicant may seek leave to appeal against the judgment of His Lordship, Hon. Justice P.C. onumajulu, chief Judge of Imo State, delivered on the 13th day of February 2003 at High Court Owerri, Imo State in Suit No: HOW81/83 – Vincent Okukwu vs. United Bank for Africa Limited & Anor.

2. Leave to appeal against the aforesaid judgment below.
3. Extending time within which the Applicant may file such appeal.
4. An order granting leave to the Applicant to raise a fresh point in this Court which was not raised at the Lower court to wit: the Applicant is a bonafide purchaser for value without Notice of the equitable interest of the plaintiff/1st Respondent in terms of the proposed Additional Ground of Appeal exhibited to the Affidavit in support of this Application as Exhibit “C”.
5. If prayer 4 above is granted, an Order extending the time within which the Applicant may seek leave to file the additional ground of Appeal vide Exhibit “C” herein.
6. Leave to file such additional ground.
7. Extending the time within which the Applicant may file such additional ground.”

The motion is supported by an affidavit of 13 paragraphs deposed to by Etumnu Edith Chinasa, a litigation secretary in the chambers of the Applicant’s counsel. Attached to the affidavit are Exhibits A, B and C – the judgment of the court below; proposed Notice of Grounds of Appeal and proposed additional ground of appeal on fresh point, respectively.

The Respondents in opposing the motion filed a counter-affidavit of 17 paragraphs.

In compliance with the Order of this Court on written addresses were filed by the learned counsel for the parties in respect of the application. The Applicant’s written address was filed on 16/2/2007. Respondents’ written address in opposition was filed on 1/3/2007. Applicant further filed a written Reply on points of law to the written address of the 1st Respondents on 1/3/2007. It is pertinent to note that on 2/10/2007 learned counsel for the 1st Respondent brought an application to substitute “VINCENT OJUKWU” who was deceased with “UDOCHUKWU OJUKWU”. The application also sought to amend 1st Respondent’s written address. On 4/3/2009 this court heard the application and granted all the reliefs therein. The Amended written address of the 1st Respondent was deemed valid filed on that date.

On 4/3/2009 respective written addresses of the parties were adopted by the learned counsel as their submissions in the application. This court was urged by the respective counsel for the parties to uphold their different positions expressed in their submissions.

The Applicant’s two issues presented for determination of the application are as follows:

“1. Whether the Applicant has shown in his affidavit in support of the motion, good and substantial reasons for failure to appeal within the prescribed period, and by grounds of Appeal which prima facie show good cause why the appeal should be heard, to warrant granting the Applicant’s motion on Notice?

2. Whether the Applicant has made out a case for granting prayers 4 – 7 as sought on the face of the motion on Notice?”

On his part the 1st Respondent adopted two issues of the applicant for the determination of the application. However his first issue is whether the application of the applicant is competent.

In the circumstance of this application, I shall settle for the two issues of nomination by the Applicant. They shall be considered later in the course of this Ruling. Summary of facts of what transpired at the trial court presented by the parties are conflicting, they are not straight forward. In consideration of this application I shall rely mainly on the affidavit evidence and Exhibits, and, where necessary the Records of proceedings of the trial court. However the following facts are undisputed. The 1st Respondent who was the plaintiff at the court below is the Founder and Managing Director of a limited liability company known as E.O. BROTHERS. He took a loan of N15,000 from the 2nd Respondent (then the 1st Defendant). The loan was secured with the 1st Respondent’s property at UMUDAGU MBIERI by a Deed of legal mortgage. Following the default in a scheduled repayment programme, the 2nd Respondent made a publication in a daily newspaper to commence sale of the property. The 1st Respondent in order to stop the auction sale commenced an action in suit No. HOW/84/82 at the Owerri High court presided over by the late CHIANAKWALAM J wherein he claimed some declaration of reliefs challenging the purported attempt to sell the mortgage property. The learned trial judge made an interim order that the property should not be sold and then adjourned the motion on Notice to 27/9/1982. It is the contention of the 1st Respondent’s counsel that while the case was yet to come up in Hon. Justice Chianakwalam’s court in court 3 in Owerri the case which was not transferred to High court No.6 presided over by Hon. Justice Nnanna Nwawachukwu by either the chief Judge or Justice Chianakwalam before whom the case was pending, was “surreptitiously fraudulently” listed in High court 6, presided over by Hon. Justice Nnanna Nwachukwu. It is further contended by the 1st Respondent in his written address that to show the level of fraud involved counsel to 2nd Respondent, was physically in court 6 and knew that 10/5/82 was not the date, court 3 adjourned the matter to but 27/9/82. That E.T. Nsofor Esq. learned counsel who knew where the matter was pending appeared for the 2nd Respondent and without informing the court in which court the matter was pending, applied that the suit be struck out by Hon. Justice Nnanna Nwachukwu. Following the proceedings of court 6, the 2nd Respondent immediately sold the disputed property to 2nd Respondent while the suit was still pending before Hon. Justice S.W. Chianakwalam.

Aggrieved by the conduct of the 2nd Respondent herein in the sale of property, the 1st Respondent herein commenced an entirely different action in suit No. HOW/81/83 which came up before the chief Judge of Imo State, P.C. Onumajulu.

The learned chief Judge in his judgment declared the auction sale null and void and of no effect. He further declared that the striking out of suit No. HOW84/82 by Nnanna Nwachukwu J on 10/5/82 was null and void and of no effect.

The Applicant was not satisfied with the judgment, and has therefore brought this application seeking the prayers set out above in the motion paper.