Christian Iwuagwu V. Emezie Okoroafor & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A.: (Delivering the Lead Ruling)

By a Motion on Notice dated the 14/12/2011 and filed the 21/12/2011, the Applicant sought the following reliefs:

1. AN ORDER extending time within which the applicant may seek leave to appeal as an interested party against the judgment and the Ruling of Hon. Justice C. I. Durueke made on the 30th day of October, 2009 and 8th of July, 2010 in HOW/229/2009.
2. LEAVE to the applicant to appeal against the judgment and the Ruling as an interested party.
3. EXTENSION of time within which the applicant may appeal against the judgment and ruling in the Suit HOW/229/2009.
4. AN ORDER deeming as duly and properly filed and served the Notice of Appeal annexed as exhibits to the supporting affidavit of this motion, as appropriate fees have been paid.
5. AN ORDER consolidating Notices of Appeal filed by the applicant against the judgment of 30/10/2009 and the Ruling of 08/7/2010, all filed on 19th of August, 2011.
6. AN ORDER staying further execution, setting aside as wrongful any execution made pursuant to the said judgment, restoring the applicant to his property at Plot 638 and 639 Works Layout, Owerri Imo State, and restraining the respondents from acting on the said judgment pending the determination of the appeal.
7. AND for such further order(s) that this court may deem fit to make in the interest of justice and in the circumstances of this matter.

THE GROUNDS in support of the application are:

(a) The applicant bought and developed his property lying at Plot 638 and 639, Works Layout, Owerri, Imo State without any notice of adverse interest since 2003 and was in possession and occupation of this property since then even before the institution of the suit in 2009.

(b) The applicant was not made a party to the proceedings leading to the judgment and was not aware of the suit.

(c) The applicant was never served with the judgment and only become aware of a judgment during invasions of the property after the statutory time allowed to appeal had lapsed.

(d) The applicant has a constitutional right of appeal as given by Section 243 of the Constitution of the Federal Republic of Nigeria.

(e) The applicant has suffered embarrassment and is aggrieved and affected by the judgment against his property without his being a party – FUNDUK ENGR. LTD. V. JAMES MCARTHUR & ORS. (1990) 4 NWLR (Pt.143) Pg. 266; A.G. EKITI V. OSHO; IN RE: OBA ORISHAGBEMU (2001) 2 NWLR (Pt.698) 546; AKANDE V. GENERAL ELECT. CO. LTD. (1979) 3-4 S.C. 115; NIG. BOTTLING CO. PLC. V. OSOFISAN (2000) 10 NWLR (Pt.675) 370.

(f) The applicant has filed Notice of Appeal over the judgment of the court and the Ruling of the court.

(g) The Grounds of Appeal raises (sic) very serious and fundamental issues of law.

(h) That if the 1st and 2nd Respondents are allowed they will be taking advantage of their wrong.

(i) The Court of Appeal has the power to grant the prayers in the application.

In support of the Application, the Applicant filed a 47 paragraphs affidavit to which he annexed 11 documents marked as Exhibits A, B, C, D, E, F, G, H, J, K and L, The 1stb and 2nd Respondents (1st set of Respondents filed a 35 paragraphs Counter Affidavit on the 17/2/2012 to which they annexed 15 document marked as Exhibits A, B, C, D, E, F, G, H, J, K, M, N, O, and P respectively. The 1st and 2nd Respondents also filed a further counter Affidavit dated and filed 26/3/2012 and a 2nd Further Counter Affidavit on the 30/5/2012. By order of this court the parties were directed to file Written Addresses. The Applicant’s Written Address is dated the 7/3/2012. The 1st and 2nd Respondents (now referred to as Respondents) also filed a Written Address dated the 26/3/2012 and filed on the same day. In response, the Applicant filed a Written Reply Address dated the 02/4/2012 and filed the 04/4/2012.

At the hearing of the motion on the 09/10/2012, the Applicant adopted the Written Address and the Applicant’s arguments in this motion, and urged us to grant same. The Respondents also adopted their Written Address in opposition to this Application and urged us to dismiss same.