Toochukwu Anyanwu 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 prayed for the following reliefs:

1. AN ORDER extending time within which the Applicant may seek leave to appeal against the judgment as an interested party and the Ruling of Hon. Justice C. I. Durueke made on the 30th day of October, 2009 and 8th of July, 2010 in HOW/299/2009.
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 the Ruling in Suit HOW/229/2009.
4. AN ORDER deeming as duly and properly served the Notice of Appeal annexed as exhibits to the supporting affidavit of this motion, as appropriate filing fees have been paid.
5. AN ORDER Consolidating the Notice of Appeal filed by the applicant against the judgment of 30/10/2009 and Ruling of 8/7/2010 all filed on the 19th of August, 2011.
6. AN ORDER staying further execution, setting aside as wrongful any execution made pursuant to the said judgment and restraining the respondents from acting on the said judgment in respect of Plot 643 Works Layout, Owerri Imo State, 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 without any notice of adverse interest since 2003 and has been in possession and occupation of his property at Plot 643 Works layout, Owerri, Imo State 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 became aware of a judgment during invasion of the property after the statutory time allowed for 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 ENGINEERING LTD v. MCARTHUR & ORS (1990) 4 NWLR (Pt. 143) 266.

(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)The respondents ought not to be allowed to take advantage of their own wrong.

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

The motion is supported by an affidavit of 41 paragraphs to which are annexed seven (7) exhibits marked as Exhibits A, B, C, D, E, F, H and J respectively and is deposed to by Mr. Kelechi Iheanacho who described himself as the caretaker/agent of the Applicant. In opposition to the motion, the 1st and 2nd Respondents (1st set of Respondents) filed a Counter Affidavit of 35 paragraphs, deposed to by Wing Commander, Engineer Vincent Okoroafor. Annexed to the counter affidavit are 15 exhibits marked as Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N, O and P respectively.

In response, the Applicant filed an “Affidavit In Reply To The Counter Affidavit” consisting of 26 paragraphs to which he annexed one document marked as Exhibit “K”. The 1st set of Respondents also filed a “Further Counter Affidavit” of 14 paragraphs, accompanied by five annextures marked as Exhibits LC1, LC2, LC3, LC4 and LC5 respectively. They also filed a “2nd Further Counter Affidavit” on the 30/5/2012 made up of 5 paragraphs to which they annexed Exhibit LC6. The 2nd, 3rd, 4th, 5th and 6th Respondents (2nd and 3rd set of Respondents) did not file any Counter Affidavit.