Yahaya Ubochi V. Michael Nuhu Atumeyi (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Lead Ruling)

By an application dated the 25th day of February, 2013, the appellant/applicant is seeking for the following relief:

“1. An order granting enlargement (extension) of time to seek leave to appeal against the decision of the High Court of Justice of Kogi State sitting at Dakina in Suit No. DHC/04WA/2006 of 29th June, 2009 contained in the judgment of Justice Hussein and Justice S. Otu.

2. An order granting leave to the applicant to appeal against the decision of the High Court of Justice of Kogi State in Suit No. DHC/04/WA/2006 of 29th June, 2009.
3. An order granting extension of time within which to appeal against the decision of the High Court of Justice of Kogi State sitting at Dekina of 29th June, 2009.
4. An order deeming the notice and grounds of appeal attached herein and separately filed as properly filed and served the necessary fee having been paid.

The application is premised on the following grounds:

“1. That the lower court sat on the case in its appellate jurisdiction and so, leaves (sic) of the lower court or this court is needed to file the notice and grounds of appeal.

2. That the Kogi State Judiciary could not constitute an appeal panel to hear the motion for leave before the time limited by the rules elapsed.
3. That the time limited by the rules for appeal having elapsed, leave of this court is needed before applicant could competently file his appeal.
4. That the applicant will rely on both grounds of law and mixed law and facts.
5. That it is in the interest of justice so that the appeal can be heard on its merit.

The appellant/applicant’s motion is supported with an affidavit of 18 paragraphs sworn to by one Miss Blessing John and exhibits A and B.

Paragraphs 3 – 11 of the affidavit in support of the motion state thus:

“3. That the appellant/applicant was the defendant at the Upper Area Court, Dekina and judgment delivered on 30/06/2006 was in plaintiffs favour, now respondent.

4. Aggrieved by the decision of the Upper Area Court Dekina, the defendant appealed to the High Court, of Justice sitting at Dekina in its appellate jurisdiction.
5. That the appellant filed his notice and grounds of appeal on 4/07/2006 containing omnibus grounds of appeal and later, by leave of the High Court sitting at Dekina he filed five additional grounds of appeal.
6. That after the High Court heard his appeal, it affirmed the decision of the trial court to the effect that the respondent proved his case as required by law, to be entitled to judgment when the respondent has failed to prove the identity of the land in dispute and could not establish his root of title as required by law, this led to a miscarriage of justice.
7. That highly dissatisfied with the judgment of the lower court, he instructed his counsel to appeal to this court.
8. That due to the tight schedule of my principal in chamber, who is the former NBA Chairman of Kogi East branch and also a NEC member, he has been seriously involved in the various meetings held across the country and we were out of time to file our notice of appeal.
9. That my principal in chamber is also a PhD student in the Kogi State University presently and had no time to work on the notice of appeal in this case within the time allowed.
10. That his junior in chamber was also not disposed.

The junior one by name Christian Ochai Esq. got married and has been on his honeymoon.

11. That the delay in filing this notice of appeal is not deliberate as we hold this court in high regard but as a result of work load on our principal in Chamber and the engagement of his solicitors in chamber.”

The respondent filed a counter affidavit of 15 paragraphs deposed to by one Emmanuel Megida Esq. Legal Practitioner of No. 70, Old Egume Road, Anyigba in Dekina Local Government Area of Kogi State, paragraph 3 and paragraphs 5 – 12 of the counter affidavit opposing the motion state as follows:

“3. That I was informed by Dr. Benjie Ogwo Esq. the principal counsel in chambers on 23rd April, 2013 at 70 Old Egume Road Anyigba Dekina LGA of Kogi State during the working hours and I verily believes as follows:

(i) That the affidavit in support of motion is incompetent,

(ii) That paragraphs 7, 8, 9, 10, 11 and 17 of the affidavit in support are not true.

5. That by virtue of my position as stated in paragraph 1 above I know as a fact that the applicant is not desirous of prosecuting this appeal.
6. That I know as a fact that the applicant has a similar application dated 1/7/2010 pending before this honourable court which application has not been determined.
7. That I know as a fact that since the said application dated 1/7/2010 was filed by the applicant he has not been diligent to prosecute it.
8. That I know as a fact that while the said applicant’s application is dated 1/7/2010 is still pending before this honourable court, the applicant want to institute a frosh action over the same subject matter against the respondent and 3 others before Upper Area Court 1 Anyigba.
9. That a copy of the writ of civil summons in respect of paragraph 8 above is herewith attached and marked as exhibit “MA”.
10. That I know as a fact that the applicant is now filing different court processes to frustrate the execution of the order of the lower court.
11. That I know as a fact that he facts stated in paragraphs 8, 9, 10 and 11 of the affidavit in support are after thought and/or fabrications which are not real with respect to the fact of the inordinate delay on the part of the applicant.

In his further affidavit, Blessing John deposed in paragraphs 3, 4, 5, 6B, 6C, and 7 as follows: