Alison Idris Nigerial Limited V. Diamond Bank Plc & Ors (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 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

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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for extension of time to appeal the said judgment but his application had some technical errors therefore was later withdrawn and accordingly struck out
v. This is a new application brought after the 1st was withdrawn and struck out for certain irregularities.?
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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

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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.
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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

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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

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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.