Bank Of The North Ltd V. Ismaila Yusuf Obansa (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

In this Application brought by way of Motion on Notice, the Appellant/Applicant is praying the Court for the following orders:-

i. AN ORDER granting an extension of time to the Appellant/Applicant within which he shall apply for leave to appeal against the judgment of the High Court number 5 Minna, Niger State which was delivered on 5th day of March, 2007 Suit No: NSHC/MN/2/2006.

ii. An order granting the Appellant/Applicant leave to appeal against the judgment aforementioned.

iii. An order granting the Appellant/Applicant an extension of time within which to file Notice of Appeal.

iv. An order granting the Appellant/Applicant permission to substitute Annexture B for Annexture A as the Grounds of Appeal filed by the Appellant/Applicant.

v. An order deeming Annexture B as properly filed and served.

And for any such further order or orders as this Honourable Court may deem fit to make in the Circumstances.”

The application is supported by a 12 paragraph affidavit sworn to by Olalekan Adepoju a Legal Practitioner. Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the affidavit are pertinent and are hereby adumbrated as follows:-

3. That I know that judgment sought to be appealed against was delivered on the 8th of March, 2007.
4. That I know that Appellant/Applicant ought to have appealed against the judgment referred to in paragraph 3 but she earlier filed annexture A.
5. That I know the Appellant/Applicant did not appeal within the time allowed by law.
6. That I know the Applicant/Appellant in order to put her case properly before the Court charged two counsel who handled this Suit in High Court.
7. That this application is necessary in order for the Appellant/Applicant to come properly before the Honorable Court.
8. That the Notice and Grounds of Appeal in Annexture A will be further amended with the leave of the Court as shown in Annexture B.
9. That it is in the interest of Justice to grant this application because there are good points to raise on appeal.
10. That the date on Annexture A, June 2007 is relevant is relied on.
11. That the Respondent will not be prejudiced if this application is granted.

The Respondent filed a Counter affidavit of 18 paragraphs opposing application. Paragraphs 9, 12, 13, 15, 16 and 17 of the said counter-affidavit hereby reproduced for ease of reference as follows:-

That I know that after over twelve months of begging for peaceful settlement of judgment debt, precisely in the last week of March 2008, the Respondent went on with enforcement of the fruit of his litigation, there was neither a valid appeal nor any valid application to set aside the valid judgment of the Court and the Writ of Execution is hereby attached and marked as Exhibit GVD “D”.

12. That I know that on the 17th April, 2008 the Respondent approached the trial Court and collected the said judgment sum vide Afri Bank cheque No. 10292451 drawn by the Chief Registrar of the High Court of Justice with other authorized signatures which is hereby attached and marked GVC “G”,
13. I know that on the 5th of November, 2008 Dr. Aliyu Salman SAN presently handling the case of the Applicant prayed the trial Court withdrawing an application to arrest releasing the judgment sum to the Respondent as he saw no merit in such an application which was filed in the Court when the sum had already been released to the Respondent, and the Record of proceeding of the case at the lower Court on 5/11/08 is hereby attached and marked as Exhibit GVC “H”.
14. That I remember that on the 5th November 2008 at the premises of the High Court of Justice Minna, Niger State at 1.30 p.m. afternoon, in my friendly discussion with S.D. Popoola Esq. he informed me and I verily believed him that by the time his service was engaged in this matter the time of Appeal had already elapsed.
15. That I know that Barrister S.D. Popoola was only engaged to file post judgment processes when the time of Appeal had already elapsed.
16. That I know that granting this application will greatly prejudice the Respondent and it will be in the interest of justice to refuse to grant it.”

The court ordered written addresses when it observed that the application is being contested. Learned senior counsel for the Appellant filed the Applicant’s written address dated 9th July 2009 on 10/7/2009.

In his submission on behalf of the Applicant learned Senior counsel Dr. Aliyu Salman said he was relying on all the paragraphs of the Affidavit particularly paragraphs 3,4,5,6,9,10 and 11. He argued that the judgment was delivered on 8/3/2007 and that the Appellant/Applicant appealed on 11/6/2007 just 3 days out of time. He referred to the date S.D. Popoola Esq. Counsel, filed Annexture A. He maintained that Mr. S.D. Popoola ought to have filed a motion praying for an extension of time within which to appeal. He said that he was not in a position as the present counsel for the Appellant/Applicant to know why it took the previous Counsel 3 months 3 days before he filed Annexture A.

Learned Senior Counsel told the court that when the Notice of Appeals was not filed in time, Appellant/Applicant decided to change Counsel. He contended that part of the delay in filing the appeal can also be attributed to the effort in getting a new counsel and holding consultation with him. He maintained that the new Counsel could not file Annexture B until 10/11/2008.