Alison Idris Nigeria Limited V. Pinash Investment Services Limited (2016)

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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. 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/129m/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 as follows:
i. ?The Applicant was the Defendant in one case with Suit No. Gm/129m/2011 filed by the Respondent while it was the Plaintiff in Suit No. Gm/37m/2011 where it sued 10 Defendants including the present Respondent all at

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the Gombe State High Court.
ii. The two sets of suits which were presided over by the same judge were consolidated where it won partially in a judgment delivered on 7/1/2014.
iii. Considering the banker/customer relationship that led into the said cases, appellant was of the opinion that they could still settle out of Court.
iv. 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.
v. 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for extension of time to appeal the said judgment but his application had some technical errors therefore was later withdrawn on 4/6/2015 and accordingly struck out
vi. This is a new application brought after the 1st was withdrawn and struck out for certain irregularities.?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

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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 Respondent filed a counter affidavit of fifteen paragraphs deposed to by one Jones Umeh, a Legal Practitioner in the Law Firm of Kanu-Kanu & Co., its Solicitors. The Court having ordered written addresses to be filed, the Applicant filed his written address on 07-03-16, while the Respondent filed its written address on 28-04-2016. At the hearing of the application on 24-05-2016, learned Counsel for the Applicant, P.A. Aki Esq. adopted his written address in urging the Court to grant the application. Since Counsel for the Respondent, who had been duly served a hearing notice, was not in Court, the Respondent?s written address was deemed duly argued in accordance with the Rules of Court. The stage had been set.
?
In their written addresses, the Applicant distilled one issue for determination while the Respondent distilled two issues for determination. Having examined both sets of issues, I am of the view that the sole issue

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framed by the Applicant will adequately serve to determine the application. It is therefore adopted as the issue for determination in this 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, 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 to submit that 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

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his favour. He contends that the Applicant could not appeal within the time prescribed by the rules against the Judgment of the trial Court in the consolidated suits numbers GM/129M/2010 AND GM/37M/2011 delivered on 07-01-2014, for the reasons explained in Paragraphs 3 (v-xxi) of the supporting affidavit. He contends that from Exhibit HCJ, (the Judgment of the Lower Court), the declaration of title sought by the Respondent was not granted. However, an incidental relief not sought for, was awarded. He contends that the two consolidated 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 an out -of- court settlement.