AKPA v. ECO BANK & ORS (2020)

AKPA v. ECO BANK & ORS

(2020)LCN/14371(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/YL/160M/2018(R)

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

PAUL AKPA APPELANT(S)

And

ECO BANK PLC 2. LAND OF GOSHEN CONSTRUCTION & SUPPLIES COMPANY LTD. 3. APOSTLE JEREMIAH BARDE RESPONDENT(S)

RATIO

WHETHER OR NOT THE GRANT OR REFUSAL OF AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT WHICH STATES SUFFICIENT REASONS FOR THE DELAY

In the case of E.F.P. Co. Ltd. v. N.D.I.C. (2007) 9 NWLR (Pt. 1039) 216 at 239, Paras. A-C. It was held that:-
“The grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the Court. The application must be supported by an affidavit which must state sufficient reasons to explain the delay and it must contain the Judgment or ruling of the Court against which the applicant is seeking to appeal and the proposed grounds of the appeal.” PER BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By a motion on Notice filed on 27/11/2018, the applicant prays this Court for the following reliefs:-
1) An Order for leave to Appeal against the final Judgment of the High Court Jalingo, in Suit No. TRSJ/71/2017 delivered on 25/01/2018, as an interested party.
2) An Order directing a stay of execution of the Judgment of the High Court, Jalingo, delivered in Suit No. TRSJ/71/2017, delivered on the 25/01/2018, pending the determination of the Appeal to the Court of Appeal.
3) And for such further order as this Honourable Court may deem fit in the circumstances of this case.

The grounds upon which the application is brought are as follows:-
1) That Suit No. TRSJ/71/2017 was heard and Judgment delivered on 25/01/2018.
2) That the applicant herein was not a party in Suit No. TRSJ/71/2017.
3) That though a tenant in the applicant’s house inform him that certain process were pasted on the gate of the rented house and by reason of that, filed and served the parties in the Suit with a counter affidavit in opposition to motion TRSJ/468M/2017.
4) That the said

counter affidavit with receipt number A004842752 was not heard nor taken cognizance of by the Court.
5) That the said house described and attached to the schedule to the deed of legal mortgage annexed to the originating process in Suit No. TRSJ/71/17, as exhibit C is the applicant’s property.
6) That the applicant herein is now desirous of appealing against the decision of the trial Court as an interested party.

The application is supported by an Eight paragraph affidavit with three annexures A (copies of bank cheques) B (copy of the Notice of Appeal) and C (Certified copy of the judgment of the lower Court). The Judgment Creditor/Respondent filed a counter affidavit of three (3) paragraphs in opposition to the grant of the application.

The supporting affidavit of the application at paragraphs 6(a-l) reads:
a. That for the applicant to be granted leave is to enable the applicant defend its title and interest in the property known as TS/17375.
b. That Suit No. TRSJ/71/2017 was heard and Judgment delivered on the 25th day of January, 2018, that a copy of the judgment is herein annexed to this application and marked as Exhibit

“C”.
c. That I am informed by the applicant and verily believe the applicant built a three bedroom building at adjacent MRS fuel station road block Jalingo, Taraba State.
d. That the decision/Judgment of this Honourable Court which leave is being sought to appeal has caused him grief, as he is now apprehensive of losing his property.
e. That the property which was referred to in the schedule attached to EXHIBIT “C” in the writ of summons, more particularly that piece of land covered by Right of Occupancy No. TS/17375 dated 20/08/08 is his property.
f. That the aforementioned land has his building thereon and that he has tenants in the said building thereon.
g. That the land and building are his property i.e. the applicant is the owner of the land and the building thereon.
h. That sometimes in 2008 the 2nd defendant herein sought to buy the applicant’s property and advanced Two Million Naira (N2,000,000.00) out of the Five Million (N5,000,000.00) agreed sum.
i. That a final deed of conveyance was to be paid when the 2nd defendants completes the payment.
j. That since then till date, the 2nd

defendant has not made good the balance. Annexed hereto are copies of bank cheques which the 2nd defendant issued to the applicant herein for the balance, which has all bounced and were not honoured, are marked as Exhibit “A”.
k. That it was after the delivery of the Judgment that my solicitor pointed out the dangers it portend for me.
l. That I quickly went to ministry of Land and Survey, Jalingo where I found out that the 2nd defendant had surreptitiously forged and obtained right of occupancy in respect of my property.

From the grounds of the Application and the Paragraphs of the supporting affidavit, the Applicant

has shown good cause why he should be granted leave to Appeal against the final Judgment of the lower Court as an interested party. The Counter affidavit filed in opposition to the application on 1/08/2019 has not countered the averments in the supporting affidavit to warrant the refusal of the application. The application is therefore granted as follows:-
1) Leave is hereby granted to the Applicant to Appeal against the final Judgment of the Taraba State High Court sitting in Jalingo in Suit No. TRSJ/71/2017 delivered on 25/01/2018 as an interested party.
2) Issue two on stay of execution shall abide the hearing of the Appeal. The Applicants are advised to prosecute their Appeal diligently.
Parties are to bear their respective costs

CHIDI NWAOMA UWA, J.C.A.: I agree.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

Appearances:

C. Osuji Esq. For Appellant(s)

Oleka Esq. For Respondent(s)