Alhaji Fatai Ayodele Alawiye V. Mrs. Elizabeth Adetokunbo Ogunsanya (2012)

LAWGLOBAL HUB Lead Judgment Report

CHRISTOPHER MITCHEL CHUKWUMA-ENEH, J.S.C. 

This Notice of Motion is brought firstly under Order 2 Rule 3(1) and (2); Order 6 Rule 2, as well as Order 8 Rules 4, 11, 12 Supreme Court Rules as Amended 1999, and secondly under Sections 22, 24 and 27 Supreme Court Act Cap. 515 Laws of the Federation 2004 and thirdly under section 233(3) -Constitution of the Federal Republic of Nigeria, 1999 (as Amended), praying this Court for the following:

(1) an order staying execution of the Judgment of the Court of Appeal in Appeal No.CA/1/52/97 delivered on 7/7/2033.

(2) an order for leave to raise fresh issue and file an additional ground of Appeal on issue of jurisdiction not raised before the lower court.

(3) an order granting leave to the Appellant/Applicant to amend the Appellants’ Notice of Appeal in terms of the proposed Amended Notice of Appeal tendered as Exhibit AFA6 to the affidavit in support of the Notice of Motion in substitution to the Notice of Appeal dated 29th June, 2007 but filed on 3rd July, 2007.

(4) an order deeming the Amended Notice of Appeal dated 28/5/2010 as having been properly filed.

(5) an order enlarging time within which the Appellant may file his brief of argument in this Appeal and

(6) an order deeming the Appellant’s brief of argument dated 28/5/2010 already filed and served as having been properly filed and served.

The grounds upon which these prayers are brought are as follows:

1. The payment of the judgment debt ordered by the two lower courts will negatively affect the Appellant’s financial standing to prosecute this Appeal.
2. The Appellant/Applicant has instructed additional counsel to prosecute the Appeal before this Honourable court, and the new team of counsel intend to raise the issue of jurisdiction before this Honourable Court, and for the first time.
3. The Notice of Appeal filed on 3rd July, 2007 did not contain the issue of jurisdiction now sought to be raised nor was any ground predicated in it on the incompetence of the trial court to entertain the suit or the lower court to determine the appeal therefrom.
4. The issue of jurisdiction can be raised at any stage of the proceedings, even before this Honourable Court sitting as court of final appeal, and for the first time.
5. The Appellant intends to prosecute the Appeal to its logical conclusion by filing his Appellant’s brief of Argument in the Appeal.
6. The action before the trial court was incompetent as the writ of summons, further Amended writ of summons (filed on 10th February, 1995) and 3rd Further Amended Statement of claim (filed on 25th May, 1995) were not signed by any cognizable legal practitioner.
7. The Notice of Cross Appeal dated and filed on 9th January, 1996 on behalf of the Respondent as Respondent/Cross Appellant in the Court of Appeal of Nigeria and which was allowed is incompetent as it was not signed by any cognizable legal practitioner.
8. This court struck out the earlier application for stay of execution on 4th June, 2007 in the belief that the Record of Appeal was not transmitted when it had in fact been transmitted. This Application will aid the expeditious determination of the Appeal.

The application is supported by an affidavit of 32 (thirty-two) paragraphs with 6 (six) exhibits. And these exhibits which have been exhibited to the said supporting affidavit are as follows:

(1) Certified Copy of the Judgment of the Court of Appeal delivered on 7th of July, 2003 marked as “Exhibit AFA1”

(2) Copy of Notice of Appeal filed on 3rd July, 2007 marked as “Exhibit AFA2”

(3) Certificate of Occupancy which is in respect of the property that is an uncompleted office block building marked as “Exhibit AFA3”

(4) A valuation by Registered Estate Surveyors, Tai Alli & Partners & Co., dated 14th September, 2009 marked as “Exhibit AFA4”