Emmanuel Aluko & Anor V. Amiable Investment Ltd (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIMA CENTUS NWEZE, J.C.A. (Delivering the Lead Ruling)

The appellants/applicants herein, by their Motion on Notice, filed in this court on November 28, 2011, entreated this court with supplications for the following orders:

1. An order for extension of time to apply for leave to appeal the judgement and Ruling of the Osun State High Court sitting at Ile-Ife [High Court 1] dated 9th day of July, 2007 and 3rd day of December, 2008, respectively, in Suit No HIF/12/99 between Emmanuel Aluko; Olagoke Gbadegesin v Amiable Investment Ltd;
2. Leave to appeal the said Judgement and Ruling of the Osun State High Court sitting at Ile-Ife [High Court 1];
3. An Order of extension of time within which the appellants/applicants can file Notice of Appeal against the Judgement and Ruling of the Osun State High Court sitting at Ile-Ife [High Court 1] dated 9th day of July, 2007 and 3rd day of December, 2008, respectively, in Suit No HIF/12/99 between Emmanuel Aluko; Olagoke Gbadegesin v Amiable Investment Ltd.

And for such further orders as the court may deem appropriate to make in the circumstance of the case.

Apart from the mandatory grounds, the application is accompanied by an eighteen paragraph affidavit annexed to which are three exhibits: exhibits ‘A’; ‘B’ and ‘C’. In vociferous opposition to the application, the respondent filed a counter affidavit of a whopping twenty paragraphs. Seven exhibits were attached to the said counter affidavit.

ARGUMENTS ON THE APPLICATION

When the application came up for hearing on October 8, 2012, Abayomi Fabunmi, Esq, of counsel for the applicants, moved the court to grant the said application under Order 7 Rule 10 of the Court of Appeal Rules, 2011. He placed reliance on the grounds for the application; the averments in the affidavit, particularly, paragraphs 3-16 thereof and the said exhibits. Citing CBN v Ahmed (2001) 7 SCM 85, 97 and 100, he submitted that the application has complied with the two requirements for its grant, citing Ifekandu v Uzoegwu [2008] 6 SCM 118, 125.

J. Omirin, of counsel for the respondent, who, personally swore to the above counter affidavit, in vehement opposition to the application, referred to the twenty paragraph counter affidavit. He placed reliance on all the paragraphs and the exhibits, citing Dike v Good day Resources Ltd [2009] All FWLR (pt 485) 1728, 1734. He contended that the reasons which the applicants adduced were not good and substantial enough. On their part, the grounds of appeal were not arguable, W.I.H Ltd v ANAMCO Ltd (2009) All FWLR (pt 485) 1797, 1798.

He urged the court to dismiss the application. In his reply, Fabunmi argued that the right to appeal is a constitutional right which the court does not ordinarily deny. According to him, the applicants are complaining of fair hearing.

FACTUAL BACKGROUND

From the averments in the affidavit and counter affidavit and the entries in the exhibits, the factual background of the forensic contest between the parties may be summed up as follows.

The lower court entered judgement against the applicants on July 9, 2007.

Sometime in January 2008, [about seven months after the said judgement], the respondent [as judgement creditor] filed a praecipe for Writ of execution of the judgement. On June 6, 2008, a Warrant of possession of the second applicant’s immoveable property, namely, his “apartment” [see, exhibit 006 attached to the respondent’s counter affidavit] was issued. By the said exhibit 006, “the defendant (sic) Mr Emmanuel Aluko and Gbadegesin Olagoke apartment was taken over and handed over to the plaintiff”.

Barely a week later, on June 15, 2008, a Notice of Attachment [Judgements Form 41] was issued “for the attachment and sale of the applicants’ movable (sic, moveable property] in execution of the judgement.” An “Inventoy” (sic, Inventory), dated June 13, 2008, showing the attached moveable property was, also, exhibited as part of the bundle of documents collectively marked exhibit 007.

On June 23, 2008, the applicants filed a motion in which they entreated the lower court for the following orders: