Alison Idris Nig. Ltd v Diamond Bank Plc and Others (CA/YL/73M/2015)[2016] NGCA 4 (30 June 2016) (CA/YL/73M/2015) [2016] NGCA 4 (29 June 2016);

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  • Alison Idris Nig. Ltd v Diamond Bank Plc and Others (CA/YL/73M/2015)[2016] NGCA 4 (30 June 2016) (CA/YL/73M/2015) [2016] NGCA 4 (29 June 2016);

Headnote and Holding:

The matter involved an application for extension of time of appeal against a lower court decision granted against the applicant. 

The main issue was whether the applicant had shown cause to justify the granting of the extension. The court noted that the length of the duration of the delay in bringing an application for extension is immaterial provided there are good reasons to justify it. In its engagement with the law, the court emphasised the role of judicial discretion in assessing the efficacy of granting the extension. It stated that for this discretion to be exercised the applicant had to show good and substantial reasons for failure to initially make the appeal. These could be a rule, lack of means, mistake or accident. The other inseparable twin leg was for the applicant to show prima facie good cause why the appeal should be heard.

In assessing whether the contemplation of an out of court settlement as reason for delay was a substantial enough reason, the court cited the Supreme Court judgment of Ikenta Best Ltd v AG Rivers State (2008) 2 SCNJ 152 to establish that the reason would not meet muster. The court thus concluded that the application did not meet the first condition for granting an extension and therefore dismissed the application for lacking merit.
 

 
In the Court of Appeal
Holden at Yola?

Between

Appellant

ALISON IDRIS NIG. LTD     

and

Respondent

1.    DIAMOND BANK PLC
2.    MRS RISI AHMED
3.    SANUSI AHMED PINDIGA
4.    SUFYAN SHEHU AHMAD
5.    ABDULHADI ABDULLAHI
6.    KAMALUDDEEN SHEHU AHMAD
7.    ABDULLAHI SHEHU AHMAD
8.    MOHAMMED KAMMAI AHMAD
9.    PINASH INVESTMENT SERVICES LTD
10.     ALIBAY & PARTNERS

RULING
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)

This Ruling is predicated upon a motion on notice dated and filed on 28-09 2015 by the Applicant herein. It is brought pursuant to Section 241(1) of the 1999 Constitution (as amended) and Order 7 Rules 1, 6 and 7 of the Court of Appeal Rules, 2011. Therein, the Applicant seeks:

“1. An order of court extending time for the Applicant within which to appeal against the Judgment of the Gombe State High Court sitting at first instance in Suit No. GM/37m/2011 in the matter of the consolidated cases with Suit no. Gm/37/2011 & Gm/129m/2010 between the present parties, presided over by Justice Paul Idi Apollos as delivered on 7th January, 2014.
 2. AND for such further or other orders as this honourable court may deem fit to make in the circumstances.”
The grounds for bringing the application are succinctly set forth in the motion papers as follows:

i.    “The Applicant was the Plaintiff in one case with Suit No. Gm/37m/2011 where he sued 10 Defendants and was the defendant in another case with suit No. Gm/129m/2010 where he was sued by one out of the other defendants, all at Gombe State High Court where he won partially and lost partially in a Judgment delivered on 7/1/2014.
ii.    Considering the banker/customer relationship that led into the said cases, appellant was of the opinion that they could still settle out of court.
iii.    That instead of appealing the said Judgment he went into consultation for out of court settlement while the other party started taking steps to enforce part of the said Judgment especially that part that was against the applicant.
iv.    The applicant on discovering this first filed a motion for extension of time to appeal the said judgment but his application had some technical errors therefore was later withdrawn and accordingly struck out
v.    This is a new application brought after the 1st was withdrawn and struck out for certain irregularities.”

 The motion is supported by an affidavit of seven paragraphs deposed to by one Jabani J. Mamza, a junior Counsel in the Law Firm of Aki, P.A. & Company, and four annexures marked Exhibits NQ, EO, NA and HCJ, which are: the quit notice, the enrolled order striking out the earlier application before this Court, the proposed Notice of Appeal and the certified true copy of the Judgment of the High Court of Justice, Gombe State, respectively.

In response, the 1st, 2nd and 10th Respondents filed a five paragraph counter affidavit deposed to by one Chinedu Ayadiuno, a staff of the 1st Respondent Bank at its Yola Branch; while the 3rd to 9th Respondents also filed a counter affidavit of fifteen paragraphs deposed to by one Jones Umeh, a Legal Practitioner in the Law Firm of Kanu-Kanu & Co., their Solicitors. Thereafter, the Applicant filed a Further and Better affidavit consisting of five paragraphs deposed to by one Abubakar Ahmed, a litigation secretary at Aki, P.A. & Co, in response to the two counter affidavits. 

Due to the contentious nature of the application, the Court ordered Counsel representing the parties to file written addresses. The Applicant filed his written address on 28-04-2016, while the 1st, 2nd and 10th Respondents filed their written address on 04-05-2016. The 3rd to 9th Respondents did not file any address and thus did not canvass any arguments at the hearing of the application. When the application was called up for hearing on 24-05-2016, both learned Counsel for the Applicant, P.A. Aki Esq., and learned Counsel for the 1st, 2nd and 10th Respondents, Habu Abdu Esq., holding the brief of S.E. Umoh, SAN, adopted their respective written addresses as their submissions in the application. Whereas Mr. Aki urged the Court to grant the application, Mr. Abdu urged the court to refuse same. The stage had been set.

The Applicant and the 1st, 2nd and 10th Respondents, in their respective addresses, distilled one issue a-piece for determination. Since the issues crafted virtually elicit the same response, the issue framed by the Applicant is adopted in the determination of the application. It states:

“Whether the Applicant is entitle (sic) to the Orders prayed by him before this court having regard to the interest of justice and fair hearing.” 

In arguing the application in his written address, learned Counsel for the Applicant submits that, while the grant of such an application is discretionary, the Court’s discretion must be exercised judicially and judiciously. He relies on: Odofin V Agu (1) (1992) 3 NWLR (Pt. 230) 350; Oba V Egberongbe (1999) 70 LRCN 1811 at 1814; & Sterling Bank Plc V Johnson (2011) ALL FWLR (Pt. 600) 1378 at 1385. The conditions for the grant of the application are:

i.    The applicant must show good reasons as to why he did not appeal within the stipulated time.
ii.    There must be good grounds of appeal which prima facie show good reasons as to why the appeal should be heard.

He therefore admits, in line with the authorities cited, that the Applicant has a duty to convince the Court that he is entitled to the exercise of its discretion in his favour. He submits that the Applicant could not appeal against the Judgment of the trial Court in the consolidated suits numbers GM/129M/2010 AND GM/37M/2011 delivered on 07-01-2014, within the time prescribed by the Rules of Court for the reasons explained in paragraphs 3 (v-xxi) of the supporting affidavit. From Exhibit HCJ, the Judgment of the lower Court, the declaration of title sought for by the Respondent was not granted. However, an incidental relief not sought for, was awarded. As a result, the Applicant was unaware that it had lost title to the property until he was served with Exhibit NQ, the notice to quit the property. Secondly, he contends that the two suits arose from a banker-customer relationship, where the issue of a mortgage was involved. The refusal of the lower Court to grant the declaration of title sought for by the Respondent gave the Applicant the impetus to pursue out of court settlement.

Counsel urged the Court to strike out paragraphs 2 (iv-v) of the 1st, 2nd and 10th Respondents counter affidavit for offending the provisions of Section 115(2) of the Evidence Act, 2011 as they contain extraneous matters by way of legal arguments and conclusions. He argues that the Respondents do not deny that the Applicant went looking for settlement, and relies on paragraphs 2(i-iii) and 3(i-ii) of the affidavit of the 1st 2nd and 10th Respondents’ counter affidavit. In view of the deposition in paragraph 8 of the 3rd to 9th Respondents’ counter affidavit that they were never approached for settlement, he argues that they refused to come out clearly to tell the world who they were, thus he had never met them and so could not have approached them. It was while making efforts to meet with the principal Counsel of the Bank that he was served with a notice to quit the property. The Applicant was unaware that the 3rd to 9th Respondents had obtained a Consent letter and executed a Deed of Assignment in respect of the property. He submits that a similar application of this nature was brought before this Court earlier which was withdrawn and struck out as reflected in Exhibit EO.

Counsel submits that the contention of the Respondents that the Judgment of the Court has already been executed is misconceived as it was not executory but declaratory. Relying on Makinde V Akinwale (2013) 8 QRR; & babatunde V Olatunji (2013) QRR 821, he submits that a declaratory Judgment cannot be executed. He contends that because the Judgment of the trial Court was ambivalent that the Applicant did not perceive that he had “lost something permanently” that he pursued an out-of-court settlement, instead of pursuing his right of appeal. He relies on Okere V Nlem (1992) 4 SCNJ 24 at 42.  

In respect of the second condition for the grant of the application, Counsel submits that from Exhibit NA, the proposed Notice and Grounds of Appeal, grounds 1 to 6 have raised serious issues on recondite points of law bordering on the illegality and nullity of the act giving rise to the suit. His contention is that the 1st, 2nd, 9th and 10th Respondents were involved in an unholy romance against the law in an attempt to deprive the Applicant of its property. The grounds of appeal disclose prima facie good grounds why the Appeal should be heard. Thus, by virtue of Section 241(1) of the 1999 Constitution (supra), the Applicant is entitled to be heard. To hold otherwise would be to deny the Applicant its constitutional right of appeal as well as its right to fair hearing by shutting him out forever from being heard. He relies on Yusuf V Obasanjo (2003) 112 LRCN 2066 at 2072. Counsel therefore urged the Court to exercise its discretion in favour of granting the application.

In the written address in response, learned Counsel to the 1st, 2nd and 10th Respondents submits that such an application is not granted as a matter of course, and the Court is expected to exercise its discretion judicially and judicially. In essence, he agreed with the principles of law for the grant of applications of this nature as already articulated by the Applicant and as enunciated in the cases of Nwora V Nwabueze 92011) 15NWLR (Pt. 1271) 467 at 498, paras C-G; Ngere V Okuruket ‘XIV’ (2014) 11 NWLR (Pt. 1417) 147 at 176, para C; Ikenta Best (Nig.) Ltd V AG Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 616-617.

Counsel submits that the Applicant has failed to advance good and cogent reasons for the grant of the application. Whereas the Applicant in his supporting affidavit and Further and Better affidavit give one lone reason for its failure to appeal within the prescribed time, to wit, that parties were negotiating an out of court settlement; both sets of Respondents denied that there was any attempt at an out of court settlement with the Applicant after the Judgment of the lower Court. In any event, he contends that this is not a good and cogent reason for the following reasons:

1.    Since there was no appeal or pending case on the subject matter, there was no basis for an “out of court settlement” as it presupposes the existence of a pending suit;
2.    Even if there was a pending suit or appeal to warrant an “out of court settlement”, pursuing an out of court settlement does not stop an aggrieved person from exercising his constitutional right of appeal within the time allowed;
3.    An intending litigant whose action is time-bound should always file his action in court even if an out of court settlement is being explored so as to avoid being caught up by the statute of limitation;
4.    This lone reason for the delay is a ploy by the Applicant to frustrate the Respondents from taking possession of the property, the subject matter of the Judgment sought to be appealed against, since he waited until the Respondents had began taking steps to recover possession of the property.

Counsel further relies on Ikenta Best (Nig.) Ltd V AG Rivers (supra) at 649; & Moukarim V Agbaje (1982) 11 SC 122, to submit that the Supreme Court has held that the reason that an applicant for an extension of time to appeal was engaged in negotiations after Judgment is not a good reason for failing to appeal within time. Counsel therefore urged the Court not to encourage the Applicant in his ploy to employ delay tactics by this application, which is brought in bad faith and is an afterthought, the purpose of which is to frustrate the Judgment Creditors from realizing the fruits of the Judgment given in their favour. 

Furthermore, Counsel submits that the submission of the Applicant in paragraph 3.6 of its written address, which contends that the Applicant did not understand the Judgment given by the lower Court, to explain why it did not appeal within time, is not supported by any deposition in the main affidavit and the Further and Better affidavit. He therefore asked the Court to discountenance same as the submission of Counsel, no matter how brilliant and elegant, cannot take the place of evidence. Besides which this reason is at variance with the lone reason advanced for the delay in filing the Appeal in the Applicant’s affidavit. Also, having already submitted in paragraph 3(iii) of the main affidavit that the Judgment was partly in his favour and partly against him, how can the Applicant now submit that it did not understand that the Judgment of the lower Court was against it and that it did not know it had anything to lose from the Judgment? Counsel therefore distinguished the case of Okere V Nlem (supra) relied on by the Applicant since there is nothing in the affidavit evidence of the Applicant to suggest this. Finally, Counsel urged the Court to refuse the application as the Applicant has failed to satisfy the conjunctive legal requirements, and to dismiss same.

Findings:

The fulcrum of this application is whether the Applicant has advanced good and substantial reasons to warrant the grant of his application for an extension of time to appeal against the decision of the lower

Court; or put another way, whether the delay on the part of the Applicant to appeal against the decision of the High Court was for good reason in the circumstances of this case. The Applicant was the Plaintiff in the consolidated cases before that Court, while the Respondents were the Defendants. Judgment thereon was entered on 07-01-2014. 

Order 7 Rules 6 and 10(2) of the Court of Appeal Rules, 2011 governing applications of this nature, provide as follows:

“6. Where an application for leave to appeal from a decision of the court below has been brought within the time specified by section 24 of the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been any unreasonable delay in bringing the application, may extend the time to appeal and in the proper case grant leave to appeal.

10. - (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

The latter rule of court provides for two conjunctive conditions for the grant of such an application. They are: that there are good and substantial reasons for failure to appeal within the prescribed period; and that the proposed grounds of appeal show good cause. What this means is that the two conditions must be present in the affidavit or proved conjunctively. The reasons must be good, must possess the quality that is satisfactory, favourable, useful or suitable to the application. Also the grounds of appeal should prima facie show good cause or good reason why the appeal should be heard. Here the Court is concerned with the strength of the grounds of appeal and not with the success of the appeal. In other words, an Applicant needs not show that his grounds of appeal will succeed on appeal. He is only to show that they are arguable. It is trite law that where one of the two inseparable twin requirements in such an application has failed to satisfy the requirements of the law, the other requirement perforce must also give way, as it cannot stand alone. Thus, the two must stand or fall together.  See Nigerian Laboratory Corporation V Pacific Merchant Bank Ltd (2012) LPELR-7859(SC) 1 at 27-28; Ikenta Best (Nig.) Ltd V AG Rivers State (2008) LPELR-1476)(SC) 1; (2008) 6 NWLR (Pt. 1084) 612; Kotoye V Saraki (1995) 5 NWLR (Pt. 395) 256. 

In Federal Housing Authority V Kalejaiye (2010) 19 NWLR (Pt. 1226) 147 (SC); (2010) LPELR-1267(SC) 1 at 27, Onnoghen, JSC, articulated what the duty of a Court and the rights of parties in such an application entail in these words:

“It must be pointed out that the role of the court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their cases or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn around and blame the court for the loss of the opportunity as the court will not allow a party to hold the opponent or the court to ransom under the guise of the desire to protect the principles of fair hearing. To me the right to fair hearing remains the right to an opportunity to be heard on any matter affecting one’s right(s). Once that opportunity is offered, the duty of the court ends there.”

The filing of an appeal against the decision of a trial Court to the Court of Appeal is guided by the provisions of the Court of Appeal Act, Cap C.36 LFN, 2004 and the Court of Appeal Rules, 2011. Section 25(1) & (2) of the Act provide as follows:

“25. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by the provisions of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of leave to appeal are:

(a) In an appeal in a civil cause or matter fourteen (14) days where the appeal is against an interlocutory decision and three months where the appeal is against a final Judgment.”
In this instance, the Appeal sought to be filed is against the final Judgment of the trial Court; hence the notice of appeal was expected to be given within three (3) months from the date of the decision sought to be appealed against. From the affidavits before the Court and the exhibits annexed thereto, the decision sought to be appealed against was delivered on 07-01-2014, while the first application for an extension of time to appeal was filed on 22-09-2014. It was subsequently withdrawn by the Applicant’s Counsel and struck out by this Court on 04-06-2015. Thereafter, the instant application was not filed until the 25-09-2015. This, no doubt, is approximately about twenty months since the decision of the trial Court was handed down.
By the clear provisions of Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a right of appeal is conferred on a dissatisfied party to appeal to the Court of Appeal on any ground, be it law, mixed law and fact or facts. Where, as in this case, the time for appealing has expired, the party dissatisfied no longer has a constitutional right of appeal. He can only file a valid appeal if this Court exercises its discretion in his favour by extending time enabling him to appeal. In addition, in a bid to do justice at all times, the Rules of Court also make allowance for an enlargement of time by this Court for the doing of anything to which the Rules in respect of time, apply. But an appellant seeking an extension of time to do certain things, such as filing an appeal, shall do so by a formal application supported by an affidavit setting forth good and substantial reasons for failure to appeal within the period so prescribed and giving grounds of appeal which shall prima facie show good cause why the appeal should be heard. See (Order 7 Rule 10(2).) There is no doubt that the consideration of such an application is entirely at the discretion of the Court, even though such discretion must be exercised judicially and judiciously. In the exercise of such discretion, the Court must always bear in mind that rules of court are meant to be obeyed, and as such, there must be materials before the court upon which to base the exercise of its discretion. See: Total International Ltd V Anogboro (1994) 4 NWLR (Pt. 337) 147; Nwora V Nwabueze (2011) SCM 1163; Akinpelu V Adegbore (2008) 7 SCM 1 at 25-26.

It needs to be stressed that the power given to the Court of Appeal under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, to grant an extension of time is discretionary. This exercise of discretion is unfettered only to the extent that it is should not be exercised as a matter of course, but must be exercised judicially and judiciously. It ought to be exercised in favour of an applicant if an exceptional circumstance for his being out of time is established to the satisfaction of the court. In an application of this nature seeking an extension of time within which to appeal, we are dealing with an applicant which failed to file an appeal against a decision of the lower Court delivered about twenty months ago, precisely on 07-01-2014. The court must not lose sight of the fact that when the time for appeal has lapsed, and lapsed without any kind of protest from a would-be appellant, the respondent has a certain accrued right which, though may not be permanent, neither should it be ignored. Thus, the court can only extend this indulgence to an applicant on settled principles, chief of which is that it has an absolute discretion in the matter. This discretion, as aforesaid, must be exercised judicially and having regard to certain defined principles. An applicant who asks the court to grant him that indulgence must show something which entitles him to the exercise of it. That something is, as a rule, either lack of means, mistake or accident. This is not an exhaustive list. See Nigerian Airports Authority V (1995) LPELR-2012(SC) 1 at 20; (1995) 6 NWLR (Pt. 403) 510; Lauwers Import-Export V Jozebson Ind. Ltd (1988) LPELR-2934(SC) 1 at 26-28; (1998) NWLR (Pt. 83) 429; University of Lagos V Aigoro (1984) 11 SC 152; Williams V Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 152-153; Benson V Nigeria Agip Oil Co. Ltd (1982) 5SC 1 AT 2-5; Solanke V Ajibala (1968) 1 ANLR 46.

Now the question is: what was/were the reason(s) given for the inability to appeal within time? Before examining the affidavit evidence before the Court, following the application of the Applicant for paragraphs 2 (iv-v) of the 1st, 2nd and 10th Respondents counter affidavit to be struck out, to which there was no response, the said paragraphs are accordingly struck out for self-evidently being legal arguments, thereby offending the provisions of Section 115(2) of the Evidence Act, 2011. 
Adducing reasons for the delay in filing an appeal in the affidavit in support of the motion for leave to appeal, the Applicant stated inter alia as follows:

“3. iii. That the judgment delivered in the two consolidated suits was partly in their favour and partly against them.
iv.That they were not satisfied with the said Judgment and had wanted to appeal it but considering the fact that it favoured them on one side and also favoured the Bank on the other side, they thought they lost nothing as there was hope of reconciliation between them and the bank.
v.Based on this understanding and the existing banker/customer relationship between the Company and the bank, they thought that out-of-court settlement will be the best option in this matter hence the resolve to go back to the settlement table.

viii. That their counsel informed him that he first approached Mrs. Risi Ahmed the branch manager of the 1st Respondent over the matter but she referred him to their counsel.
xi. That sometime in July 2014 towards the end of 2013/2014 legal year the said Mr. Umoh SAN came down from Abuja and they met at the Court of Appeal Jos and Mr. Aki informed him of their intention to come over for the out of court settlement.
xii. When the August vacation set in, Mr. Aki also proceeded on the annual event so they were unable to meet to agree on the proposed terms of settlement.
xiii. That while enjoying the August vacation in his village, one Ahmadu Idris who is the Manager of Alison Idris Nig. Ltd called to inform him that they were served with a Notice to quit the subject matter of the dispute i.e. a filling station owned by the company which is located at Liji along Biu road in Gombe...
xiv. That the counsel who served the said letter was the counsel that represented 3rd-9th Respondents in the consolidated suit and who lives in Abuja.
xv. that they could not meet with the said counsel over the proposed settlement because of the distance and equally could not meet the 3rd-9th Respondents as they were nowhere to be found.” 

The 1st, 2nd and 10th Respondents in their counter affidavit, respond to these depositions inter alia as follows:

“1. ix. That paragraph 3(iv) of the affidavit in support of the applicant’s application is not correct as the judgment of the lower court sought to be appealed against by the applicant is a final judgment and after the said judgment there was no matter in court let alone to contemplate out of court settlement.

2. That I was informed by N.D. Gwaison Esq. of counsel in the law firm of Messer. (sic) Solomon E. Umoh, (SAN) & Co ... as follows:

i. That when the applicant’s counsel approached him and expressed the desire of reaching an amicable settlement inspite of the judgment, he referred him to the bank as it is only litigants that can compromise their cases or judgment as the case may be.
ii. that when he further approached Solomon E. Umoh, SAN, ... he reacted in a similar manner.
iii. That they never approached the respondents anytime after the judgment for settlement rather they were in other Superior Courts witht he 1st respondent on the same transaction.

3. That I was informed by Marachukwu Anokwuru in Yola Branch of the 1st Respondent ... as follows:

i. That I know as a fact that neither the applicant nor its solicitor Peter Aki Esq have ever approached the bank and discussed compromising the judgment of the lower court out of court.

ii. That I know as a fact that before the applicant instituted the action that gave rise to the judgment that is sought to be appealed against by the applicant, there was an attempt at amicable settlement between the applicant and the 1st respondent but same was unsuccessful.
iii. That the amicable settlement ended in deadlock as parties could not arrive at any consensus hence the institution of the case that led to the judgment sought to be appealed against by the applicant.”

While the 3rd -9th Respondents state inter alia thus:

“6. That in specific response to paragraph 3(ii) of the said affidavit, I state that the dispute between the appellant (sic) and 3rd to 9th respondents is not a banker customer issue.
7. That the dispute between the applicant and the 3rd-9th respondents is the possession of the applicant’s mortgaged property purchased by 9th respondent from the 1st respondent.
8. That in specific response to paragraph 3 of the said affidavit I state that there was never a settlement or a proposal for same between the applicant and the 3rd to 9th respondent (sic) at any time or at all.”

In the Further and Better affidavit, the Applicant insisted that he approached a different officer of the 1st Respondent with the proposal for an out-of-court settlement and not the officer who was the source of information in respect of paragraph 3 of the affidavit of the 1st, 2nd and 10th Respondents affidavit. He further explained why he was unable to approach the 3rd- 9th Respondents with his proposal for settlement.  

Gleaned from all these averments, it is evident that the sole reason advanced by the Applicant for his failure to appeal against the decision of the trial Court within time is because he was contemplating/exploring a settlement of the dispute out of court. Is this a good and substantial reason? Before answering this question, it is significant that even this notion of settlement out of court has been disputed by both sets of Respondents. While the 1st, 2nd and 10th Respondents contend that the attempt at an out-of-court settlement was before the consolidated suits before the trial Court were filed, the 3rd-9th Respondents out rightly contend that the Applicant never approached them for any out-of-court settlement. The attempt at an out-of-court settlement being the only reason canvassed for the delay in falling afoul of the Law and Rules of Court in appealing within the prescribed time, the question which must be answered is: whether such reason, (actual or imagined), suffices as a good and substantial reason for the grant of this application. 

Indeed, the answer to this question is not farfetched as the Supreme Court has had an opportunity to pronounce on a similar set of circumstances in the case of Ikenta Best (Nig.) Ltd V AG Rivers State (2008) 2 SCNJ 152 at 190-191 & 195-196. Therein, the Supreme Court, in upholding the dissenting Judgment of Ikongbeh, JCA, held per Muhammad, JSC, as follows:

“Other reasons advanced such as contemplation of settling the matter by the parties could not have been a barrier to filing an appeal at the appropriate time. Equally where the appeal had been properly filed, that in itself cannot be a barrier to filing terms of settlement and then seek leave of court to withdraw the appeal. Nothing of that nature happened. The respondents ... went into deep slumber from 16th April, 1996 to the 13th November, 2003. “Delay”, they say, “defeats equity.” The law aids those who are vigilant not those who sleep upon their rights.”    

In view of this express position of the state of the law as pronounced upon by the apex Court, it is no longer subject to wrangling, much less contest, that a party’s attempts at settlement out of court, (after a decision has been handed down), is not a good and substantial reason for a party aggrieved by the decision of a trial court, to delay filing an appeal against same, simply in contemplation of that settlement. Thus, since in the instant application, the sole reason adduced by the Applicant for failing to appeal within time and therefore for invoking the discretionary jurisdiction of this Court is that an out of court settlement was being contemplated, I am constrained to find that it cannot be regarded as amounting to a good and substantial reason for the delay in filing the appeal. 

I also discountenance the latter-day argument of the Applicant contained in the Applicant’s written address that the Applicant did not actually understand the purport of the Judgment of the trial Court, and therefore was unaware that the property in question was jeopardised. This submission is certainly not one of the grounds for the application as set out in the Grounds for the application, nor is it a fact deposed to in the affidavit or in the Further and Better affidavit. Instead, I agree with learned Counsel for the 1st, 2nd and 10th Respondents that it is merely an afterthought. It thus cannot bring the application in line with the decision in Okeri V Nlem (supra), relied on by the Applicant In addition to which, such is evidently in conflict with the sole reason advanced for the delay, which is the attempt at an out-of-court settlement. If the Applicant had no understanding of the Judgment of the trial Court, and was not aware that the decision had deprived him of something significant, why was he running around the Respondents seeking to still achieve a suitable settlement, post-Judgment? This submission is both contradictory and bizarre. 

In the result, I find that the affidavit evidence of the Applicant does not meet the first mandatory condition of advancing good and substantial reason(s) for the delay in filing an appeal under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. That being the case, it is futile to look into the grounds of appeal proposed with a view to deciding whether or not they disclose a prima facie arguable appeal. As aforesaid, the twin conditions for the grant of an application of this nature are conjunctive and not disjunctive. Thus, to fail in one is to fail in both. 
In the light of the foregoing consideration, I hold that the application is without merit and is accordingly refused. No costs are awarded.    

SAIDU TANKO HUSAINI:
This is an application seeking for extention of time to appeal against the Judgment of the Gombe State High Court delivered on the 7th January, 2014 in the consolidated Suit No. GM/37M/2012 in the matter of the consolidated cases with Suit GM/37/2011 and GM/128M/2010  between the Parties named herein.

The said application dated and filed on the 28th September, 2015 is coming some 20 months after the delivery of the Judgment to which this application relates. It is a final Judgment and thus the party who is aggrieved by that decision reserved the right to appeal against that decision as of right pursuant to Section 241 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the event that it failed to exercise that right of appeal (as in the instant case) within the stipulated period of 3 months as provided for at Section 24 (1) (2) of the Court of Appeal Act, 2014, the Party looses that right of appeal. Having lost the right of appeal, the Party can only apply to court for extention of time to appeal and the Court in the exercise of its discretionary powers may extend time as would enable the Party file his appeal. See Nyako V. Nwabueze (2011) 6SCNJ 440, 436; Chukwu V. Omehia (2012) LPELR-9344 (SC). The success of such an application is conditioned upon two factors. The applicant is required to establish to the satisfaction of Court facts as to:

1.    Good and substantial reasons being given for the failure to appeal within the prescribed period; and
2.    Grounds of appeal which prima facie show good cause why the appeal should be heard.

See: Order 7 rule 10 (2) of the Court of Appeal rules, 2011.

The success of the application depends upon the 2 (two) requirements stated above being fulfilled at the same time. Meeting one of the conditions without the other will lead to the application being dismissed, See: Oba V. Egberonge (1999) 8 NWLR (Pt. 615) 485.

Permit me my Lord to emphasize on one point and that is on the length or duration of the delay in bringing the application for extention of time. The length of the delay is immaterial so far as good and substantial reasons justifying the delay is proffered. On the other hand the duration of delay no matter how short it is becomes material if no reason at all is given to justify it. On this point I refer to the decision in Yusufu v. Cooperative Bank (1989) NWLR (Pt. 110) 483. The reason advanced by the applicant in the instant case is the fact that settlement out of court was being contemplated by the parties on both sides hence according to them it was needless to appeal against the Judgment of the Gombe State High Court until they received a Notice or Order to quit the premises (Petrol Station) to which the Suit relates. It is at this point it dawned on the applicant that they needed to appeal after all but it was then too late as the statutory time allotted within which the can file the appeal had lapsed. This account for the present application. Unfortunately the reason now being advanced by the applicant is hardly convincing enough since proposal for settlement out of court is not a barrier to filing an appeal at the appropriate time. See: Ikenta Best (Nig.) Ltd Vs. Attorney General Rivers State (2008) 2 SCNJ 152, 190-191.

I had a preview of the lead ruling just delivered by my learned law Lord, Sankey, JCA with whom I concur on all points canvassed in the said lead Ruling. Ultimately, this application should and same is hereby dismissed for lacking merit.

BIOBELE ABRAHAM GEORGEWILL, JCA:
I agree.

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Counsel

P.A. Aki Esq. appears for the Applicant.
Habu Abdu Esq., holding the brief of S.E. Umoh, SAN, appears for the 1st, 2nd and 10th Respondents.
3rd to 9th Respondents not represented