Court dismisses firm’s bid to appeal against property possession
A Federal High Court sitting in Lagos has dismissed an application seeking leave to appeal a February 11, 2020 judgment, which granted First City Monument Bank (FCMB) Ltd possession of Ashake Estate at Oniru, Victoria Island, Lagos.
Justice A. M. Liman agreed with FCMB that the application, filed by Law Union and Rock Insurance, was incompetent, having been filed out of time – over three months after the judgment.
Law Union and Rock Insurance had sought leave of court to appeal the judgment marked FHC/L/CS/130/2019 as an interested party/applicant, while FCMB is judgment creditor/respondent, and Mr. Tunji Ogunwusi & Primewaterview Ltd as judgment debtors.
The interested party/applicant filed a motion on notice dated October 16, 2020 seeking an order granting leave to appeal to the Court of Appeal as an interested party against the judgment of Justice Liman delivered on February 11, 2020.
The application further prayed the court for an order staying the execution and or further execution or the enforcement of the judgment in any manner pending hearing and determination of the appeal.
Justice Liman’s judgment granted FCMB possession of Ashake Estate, via a foreclosure order, following Ogunwusi & Primewaterview Ltd’s alleged debts to the firm.
Primewaterview Ltd and Tunji Ogunwusi had entered a Deed of Tripartite Legal Mortgage as security for a loan allegedly granted them by FCMB, under which the entire Ashake Estate became encumbered as security for the loan.
When the application came up for hearing on February 18, 2021, Mr. Nick Omeye, leading Uzuh Olis appeared for the judgment creditor, FCMB.
Oyinkatola Badejo-Okusanya brought an application seeking leave to appeal against the judgment. Mariam Abdul appeared for the 1st judgment debtor/applicant and E. C. Azaiono for the 2nd judgment debtor/applicant, while Victoria Janah-Ujah appeared for the applicant seeking to set aside the judgment.
Abdul and Azaiono brought two motions seeking to set aside the judgment, but Nick Omeye opposed the applications.
He contended that the judgment is a final judgment and can only be set aside on grounds of fraud, non-service or lack of jurisdiction, and in the absence of any of the above grounds as envisaged by Order 14 Rule 10 of the Federal High Court Rules, 2019, the applications are bound to be dismissed. The court delivered a ruling and dismissed the applications.
He also argued a preliminary objection backed by an affidavit sworn to by Kayode Omijie, opposing the interested party’s motion on notice for leave to appeal. The counsel observed that the judgment against which the applicant sought leave to appeal, via an October 16, 2020 application, was delivered on February 11, 2020, long after the permissible three months’ period within which to appeal against a final judgment.
He noted that the law requires that the appellate court can only entertain any such application beyond the three months period.
Omeye said: “The application is incompetent. Where a final judgment has been delivered in a suit, all the parties to the suit who are dissatisfied with that judgment have only three months within which to appeal. Where that time has expired, they can only go to the Court of Appeal.
Justice Liman upheld Omeye’s argument. Responding to Badejo-Okusanya’s argument, the judge said: “How can you apply to be joined when this matter has been concluded? This application is struck out. The judgment was delivered on February 11, 2020, and you filed your application on October, 16, 2020.”
Omeye further opposed Janah-Ujah’s application to set aside the judgment and the court upheld the argument.
The case was adjourned till March 25, 2021.
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