Human right lawyer, Nkeruwem Akpan, has approached Court of Appeal seeking extension of time to challenge decision of the Court that led to the suspension of Mrs. Oluwatoyin Yahaya as Chief Registrar of the Abuja High Court.
The motion filed on June 27 was made available to Nigerian Pilot over the weekend in Abuja.
It is brought pursuant to Section 233(3), 233(5), 233(6) and Section 6(6)(a)(b) of the 1999 Constitution( as amended) as well as Order 7 Rules (1)-(5) of the Court of Appeal Rules 2007.
The Court of Appeal, on June 4, indicted Yahaya, for releasing the sum of N460 million judgment sum kept in her custody against court orders.
The decision also indicted the Managing Director/CEO of BPS Engineering and Construction Company Limited, Mr. Chudi Chukwuani, the judgment creditor to whom the money was released to.
Justice Adumein Yahaya in that decision held that the release was in contravention of two subsisting interlocutory orders made by the Appeal Court and the FCT High Court respectively.
The controversy emanated from a suit filed by BPS Engineering and Construction Company Limited against the Federal Roads Maintenance Agency for breach in contract agreements.
Justice U.A Iyang of the FCT High Court had on Aug. 1, 2012 ordered the immediate payment of the amount to the plaintiff by FERMA.
Dissatisfied by the release of the money during pendency of an appeal against the judgment, FERMA filed an application challenging the release of the money to the judgment creditor.
It urged the appellate Court to invoke its discretionary powers to compel the Chief Registrar and Chukwuani to pay back the disputed judgment sum within 30 days.
Nigerian pilot gathered that the alleged judicial oversight carried out by the Chief Registrar was viewed as misconduct by the National Judicial Council, NJC and therefore suspended her from office.
The suspension was said to have come via a letter from FCT, Judicial Service Commission signed by the Chairman of the National Judicial Council, NJC, Justice Aloma Mukhtar.
When the alleged injustice was brought to the knowledge of Akpan, a Human Rights lawyer, he quickly filed a motion at the Court of Appeal seeking, among other reliefs, that the ruling be set aside.
Also in his 28 paragraph affidavit in support of the motion, the applicant declared himself to be conversant with the facts of the case.
He deposed that his interest in the matter was ignited by a Newspaper publication of June 13 with a caption “Appeal Court Indicts Contractor over 460 million’’.
He explained that the publication seemed to suggest that the Chief Registrar in that jurisdiction acted criminally and disreputably to have released the funds to the judgment creditor.
Akpan further deposed that being a legal practitioner with about a hundred numbers of cases in that court, at first the news of the development immediately affected his confidence in the court and the officer.
However, the applicant averred that his curiosity to unearth the truth surrounding the transaction led him to secure an official copy of the ruling of the appellate court delivered on June 4.
Akpan said that he had applied for the certified- true- copy of the orders of the court in issue with a view to dragging the affected officers to either the National Judicial Council, NJC or the Economic and Financial Crimes commission, EFCC .
The applicant further explained that an official copy of the order of court from the Abuja High Court which gave credence to the release of the money was equally secured.
He further deposed that, “I was surprised to discover that the fault was not theirs but that they were only obeying a valid order of court’’.
According to him, it was a fact that the `Decree Order Absolute’ and the `Writ of Attachment’ was not brought to the attention of the court by either the appellant or respondent.
“I verily believe that the ruling of the appellate ordering the re-payment of the funds and which led to the suspension to the Chief Registrar would not have been made if the attention of the court was brought to the decisions at the trial court.
I verily believe that this decision of your lordship can be set aside sou motu upon the emergence of these fresh facts.
I verily believe that this application has merit and provides your lordship with additional impetus to set aside the ruling complained of.
I know as a fact that this application ought to have been brought within 14 days from the day of the ruling complained of.
I have approached the court slightly late due to the fact that I had to gather the materials and exhibits necessary to bring this application; the delay is not deliberate.
I verily believe the counsel in the main case owed this court a duty to draw your lordship’s attention to the Writ of Attachment in issue but failed to do so.
I verily believe that this oversight on the part of the counsel occasioned a gross miscarriage of justice and could if not reversed, further drag the good image of judiciary into disrepute.
The FCT Court officials acted bona fide in obeying a valid order of court and therefore not be vilified having acted within the law.
It would be in the interest of justice to grant the reliefs sought as none of the parties shall be prejudiced rather greater injustice shall occasion its refusal’’, he said.
The suspension of the Chief Registrar hinges on the June 4 judgment of the Court of Appeal delivered by Justice Abubakar Yahaya in an application brought to it by FERMA.
The respondents in the matter were BPS Engineering and Construction Company Nig. Limited, Chief Registrar, FCT High Court, and Deputy Sheriff, FCT High Court.
The Central Bank of Nigeria, CBN was listed as a garnishee/respondent.
The appellant has sought an interlocutory order mandating injunction compelling the respondents to pay the N460 million into an interest yielding account in the control of the Chief Registrar pending the determination of the appeal.
The applicant said the appeal raised jurisdictional fundamental and arguable grounds of law with high chances of success.
FERMA argued that the FCT High Court originally lacked the jurisdiction to have entertained the case as the appellant was an agency of the Federal Government.
However, the motion was based on a notice of appeal dated Aug. 1, 2012.
The said notice of appeal was filed pursuant to garnishee order absolute made by the trial court on Aug. 1, 2012 ordering FERMA to pay to BPS Engineering and construction Coy Nig. Ltd being the judgment creditor the sum of N460 million.
FERMA was not a party to the garnishee proceedings and therefore barred from taking part in the proceedings by the trial court, as according to Akpan, available records showed that the ruling was not appealed.
He explained that the order of garnishee absolute was a consent judgment in which FERMA that was a party to the proceedings consented.
In such circumstance, Akpan argued, FERMA had no right of appeal and accordingly only appeal with a leave which they failed to seek, therefore making the notice of appeal of Aug.2, 2012 and any amending notice thereof incompetent.