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Home » Nigerian Cases » Supreme Court » E.A. Malari & Ors V. Dr. Richmond Sisan Leigh (2018) LLJR-SC

E.A. Malari & Ors V. Dr. Richmond Sisan Leigh (2018) LLJR-SC

E.A. Malari & Ors V. Dr. Richmond Sisan Leigh (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

By a motion on notice filed on the 25th day of May 2017, (simply referred to herein as “the motion”) the applicants ask this Court for the grant of the following reliefs:

1) AN ORDER of this Hon. Court extending the time within which the appellants/applicants may seek leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Division delivered on the 13th February, 2012 in Appeal No. CA/B/23M/2010. E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh which ruling dismissed the appellants/applicants motion which seeks extension of time within which they may appeal against the judgment of the trial High Court delivered on the 5th May, 2006.

2) AN ORDER of this Hon. Court granting appellants/applicants leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 in Appeal No. CA/B/23M/2010 dismissing the Appellants’ Application for extension of time within which they may appeal.

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3) An ORDER of this Hon. Court extending the time within which the appellants/applicants may appeal against the ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 in Appeal No. CA/B/23m/2010 dismissing the appellants application for extension of time within which they may appeal.

4) AN ORDER striking out the names of E. A. Malari (Deceased), Olaraja Evenuberu Emami (Deceased) and Pa Agbekuku Mone (Deceased) who are 1st, 8th and 9th appellants/applicants respectively in this appeal.

In moving the Motion, learned counsel for the applicants, Mr. Erhabor stated that the motion is predicated on six (6) grounds and supported by a thirty(30) paragraphs affidavit, sworn to by one Chukwudi Nzediegwu. He also filed several further or further and better affidavits in support. He attached along with the affidavits several exhibits. Learned counsel filed a list of additional authorities. He filed a written (brief) address in support of the motion. He adopted and relied on all the paragraphs of the affidavits in support and the written address. He urged this Court to grant the motion.

In opposing the motion, learned counsel for the

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respondent, Mr. Patrick Oganwu stated that he filed a counter affidavit sworn to by one Dr. Richmond Sisan Leioh: several further counter affidavits all with attachments as exhibits. He filed a written address in opposition to the motion. Learned counsel relied on all the averments in the counter affidavits and adopted the written address. He urged this Court to refuse the motion.

In the written address filed, learned counsel for the applicants argued the motion through issues which he formulated, thus:

  1. Whether there was compliance with Sections (sic) 233(3) of the 1999 Constitution and Order 2 Rule 28(4) of the Supreme Court Rules.
  2. What is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal ()

After setting out the Constitutional Provisions, the Supreme Court Act as contained in Cap. S15, LFN, 2004 and the Supreme Court Rules, pursuant to which the motion was brought, the learned counsel submitted on issue one that an application for leave to appeal is an appeal and that by the provisions of Section 27(2)(a) of the Supreme Court Act, the applicants had three months to appeal against the decision of the Court

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of Appeal. The applicants, he stated, filed their initial application for leave to appeal in the Court of Appeal on 23rd March, 2012. Learned counsel submitted that as at 26/3/2013 when the erstwhile counsel filed his application for leave to appeal to the Supreme Court, the Court of Appeal no longer had jurisdiction to grant the applicants leave to appeal. Consequently, it was impossible or impracticable for the applicants to go before the Court of Appeal seeking leave to appeal over ten months after the 14th of May, 2012. By virtue of Subsection (4) of Section 27 of the Supreme Court Act, this Court may extend the period of 3 months stipulated in Section 27(2)(a) supra.

Further, by virtue of Section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999 and Order 2 Rule 28(4) of the Supreme Court Rules, 2004, this application ought to have been brought before the Court of Appeal after which it can be filed at the Supreme Court. This was not possible due to inadvertent error of counsel for the applicants in the year 2012. He cited several cases in support including: Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (Pt.974)

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619 at page 637 D – G; Akinpelu v. Adegbore (2008) 10 NWLR (Pt.1096) 531 at page 555 F – G; Nwora v. Nwabueze (2011) 15 NWLR (Pt.1271) 467 at page 505 D E.

Learned counsel for the applicants made further submissions that in addition to the inadvertence of counsel and that there was an omission from the Court of Appeal Register to issue hearing Notice timeously. He submitted that he relied on the depositions as per paragraphs 4(b),(c), (e), (f), 5 -14; 18 – 24 of the supporting affidavit. He urged that the Courts will not visit the sins of counsel on their clients. He urged further that the reasons given for the delay be adjudged to be credible and reasonable.

Arguing his second issue (issue two), learned counsel for the applicants stated that in an application for extension of time within which to appeal, the Courts have for long settled the principle governing same and that is, the applicant is required to show:

a) good and substantial reasons for failure to appeal within prescribed period and

b) grounds of appeal which prima facie show good cause why appeal should be heard.

He cited Order 2 Rule 31(2) of the Supreme Court

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Rules; Alagbe v. Abimbola & Ors (1978) 2 SC 39; Chief Yesufu v. Corporate Bank Ltd. (1989)3 NWLR (Pt.110) 483, in support. Learned counsel went further to re-state that the good reasons for the delay in appealing on time and prima facie arguably grounds of appeal must co-exist to earn the applicant the favour of Court’s order to appeal out of time. Learned counsel for the applicants was very emphatic in citing the exception to the general rule guiding the application that in view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel, otherwise, it will be up to the respondent to show in what respect he would be prejudiced if the application is granted. He relied on the cases of Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 634; Imegwu v. Dpp & Ors (2013) 2 SCM 81 (2013) 9 NWLR (Pt.1359) 347, reported as Imegwu v. Okolocha; Nwora v. Nwabueze (supra); Adeyemi v. Y. R.

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Ike Oluwa & Sons (1993) 8 NWLR (Pt.309) 27 at p.42 paras D – G; and many others. Learned counsel referred this Court to paragraphs 4(b), (c), (e), (f), 5, 6, 7, g, 9, 10, 11, 12, 13, 14, 18, 19, 20, 22, 23 and 24 of the affidavit in support.As for the second condition of the rule, learned counsel for the applicants submitted that it is settled law that in determining the strength or substantiality of the grounds of appeal the applicant need not show that these grounds must succeed on appeal. Rather, the applicant is merely required to show that they are arguable. He cited the cases of Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (pt.96) 157 at page 178; Holman Brothers (Nig) Ltd v. Kigo (Nig) Ltd. (1980) 8 – 11 SC 43 at pages 6263; Ibodo v. Enarofia (1980) 5 – 7 SC 42, among others.Learned counsel argued that in the copy of the proposed Notice of Appeal which contains the grounds of appeal, the applicants raised some legal issues such as lack of jurisdiction of the trial Court. It was therefore wrong for the Court below to consider the length of time before the application was brought and that it lacked jurisdiction to have dismissed the appeal on the

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ground that the affidavit of counsel was of little or no evidential value. He relied on the principle that length of time is irrelevant where a judgment is given without jurisdiction and it can never be too late to appeal against it as the reason for the delay ceases to be a relevant factor. He referred to the case of Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527 at 541 – 542 pages G – A; Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (pt 83), 429; Timitimi v. Amabebe (1953) 14 WACA 379, among others. Learned counsel argued further that it is a wrong exercise of discretion for the Court below to consider only one leg of Order 7 Rule 10(2) of the Court of Appeal Rules 2011, to decide the application on that alone. He cited in support the case of Re: Adewunmi & Ors (1988) 3 NWLR (Pt. 83) 483 at pages 497 and501 paragraphs B – C and E. Learned counsel finally urged this Court to exercise its discretion in favour of the applicants as the affidavit and documentary evidence placed before the Court reveal that the applicants have satisfied the two conditions. He urged this Court to grant the applicants leave to appeal against the Ruling of the Court below dated 13th

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February, 2012.

Learned counsel for the respondent, in his (brief) written address in opposition to the Motion, after laying the foundation giving rise to this appeal, framed two issues for consideration by this Court, viz:

  1. Whether the appellants/applicants have placed sufficient/material evidence via their affidavit evidence to warrant this Hon. Court to exercise its discretion in their favour.
  2. Whether the appellant/applicants proposed Grounds of Appeal PRIMA FACIE show good cause why the appeal should be heard.

It is learned counsels submission on issue 1(one) that the applicants have placed sufficient material evidence via affidavit evidence to warrant this Court exercise its discretion in their favour. He argued that the reliefs sought by the applicants are equitable in nature and discretionary which discretion must be exercised judicially and judiciously.

Learned counsel for the respondent challenged the applicants that they did not come with clean hands and that their supporting affidavit is riddled with falsehood. Learned counsel referred to paragraphs 8, 9 and 11 of the said supporting affidavit and the respondents

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counter affidavit particularly, paragraphs 27, 28 and 28 and Exhibit LL attached to the counter affidavit. Learned counsel submitted that there are some inadvertences of counsel that cannot be visited on a litigant such as, in this application, erroneous belief of counsel as to the Court in which to file a process; substantive and procedural incompetence, which amounts to ignorance of the law, which is not an excuse even for a layman, moreso of a counsel. He argued that the applicants have not placed sufficient materials for their inordinate delay in bringing their application.

On his issue 2(two) learned counsel for the respondent submitted that the proposed grounds of appeal are bereft of any good cause why the appeal should be heard. He stated that the learned justices of the Court below fully considered the 2(two) legs of Order 7 Rule 10(2) of the Court of Appeal Rules 2011. The Court below evaluated the affidavit evidence placed before it before coming to a conclusion that the applicants were dilatory in their approach to judgment of the trial Court.

Furthermore, the Court below found that by Exhibit

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“CC” that the applicants had already reaped fruit of the judgment of the trial Court by collecting the sum of N700,000.00 awarded by the trial Court. The applicants cannot be said to have a recondite grounds of appeal. Learned counsel submitted that a dilatory applicant is not entitled to a prayer for extension of time to appeal. He cited the case of Ukwu & Ors v. Bunge (1997) 8 NWLR (Pt. 518) 527. He argued that the authorities cited by the learned counsel for the applicants in his brief in support of the application are inapplicable as the peculiar facts of this application are not in all fours with the cases cited by him in support of the application. He urged this Court to refuse the prayers sought by the applicants and resolve the two issues in favour of the respondent and against the applicants.

My lords, in treating this application, I will lay more emphasis an the issues formulated by the learned counsel for the respondent, which are not, in my view, dissimilar with the 2nd issue (issue 2) of the applicants’ issues. lf there is need, I shall touch the first issue (issue 1) by the applicants.

It is an established practice in the Supreme Court, for

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quite long, supported by law and Rules of Practice, for the Court to extend or enlarge time for the doing of anything. Section 27 of the Supreme Court Act, 1960, as amended, now contained in Caption of the Laws of the Federation, 2004, provides:

  1. The Supreme Court may extend the period prescribed in Subsection (2) of this Section.”

Subsection (2) of Section 27 is the Section that stipulates for the prescribed periods for giving notice of appeal or notice of application for leave to appeal (the latter part thereof being defined by the Supreme Court Rules of 1985 (as amended) to amount to an appeal. Further, Order 2 Rule 31(1) of the Supreme Court Rules, stipulates:

“The Court may enlarge the time provided by these rules for the doing of anything to which these Rules apply…”

Supreme Court is essentially the final appellate Court of the Federal Republic of Nigeria from where no further appeal(s) lies to any Court or body. I feel comforted by the provision of Section 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended:

“Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy,

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no appeal shall lie to any other body or person from any determination of the Supreme Court.” (Underlining for emphasis)

Civil and Criminal appeals go to the Supreme Court from the decisions of Court of Appeal and or, other Tribunals. Appeals in civil or criminal matters may come in two forms: (a) interlocutory and or (b) final decisions. In each of the two forms, appeal on civil matters have determined periods within which to be initiated to the Supreme Court. In criminal matters too, time within which to appeal has been provided. The law and Rules (set out above) are very clear on that. Section 27 of the Act provides:

“(2) The periods prescribed for giving of Notice of Appeal or Notice of Application for leave to appeal are:

a) in an appeal in a civil case. FOURTEEN DAYS in an appeal against an INTERLOCUTORY decision and THREE MONTHS in an appeal against a FINAL decision.

b) in an appeal in a criminal case. THIRTY DAYS from the date of the decision appealed against.” (underlining and italics for emphasis)

I do not find it necessary to go into the academics of which appeal is as of right and or, which should be

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initiated by leave of Court. The Constitution is very clear on that (Section 233(2) thereof).

But, my lords, why this application Both learned counsel for the respective parties agree that the Benin Division of the Court of Appeal (Court below herein), delivered a Ruling in Appeal No. CA/B/23M/2010, between E.A Malari & 19 Ors v. Dr. Richard Sisan Leigh, on the 13th day of February, 2012 in which the Court below dismissed the applicants application for extension of time within which to apply for leave to appeal against the judgment of the Delta state High Court, holden at Warri (trial Court), in suit No. W.18/2001 delivered on the 5th day of May, 2006.

In the narratives, according to the learned counsel for the applicants, the appellants/applicants were not satisfied with the trial Court’s judgment of 5/5/2006 in the suit referred to above. They subsequently applied to the trial Court on 7/5/08 (a little over two years from the date of judgment) to set aside its judgment on the 11th of June, 2009, the trial Court refused to set aside its judgment. Dissatisfied with the Ruling of the trial Court of 11/6/2009, the applicants appealed to the

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Court below vide a Notice of Appeal dated 25/6/2009. On the 5/2/2010. the appellants/applicants filed a motion before the Court below seeking for extension of time within which they may appeal against the judgment of the trial Court of 5/5/2006. On the 13/2/2012, the Court below delivered its Ruling dismissing the appellants/applicants application for extension of time within which to appeal. In his written address before this Court, learned counsel for the applicants captured vividly what he said happened which is better told in his own words viz:

“1.05 Further aggrieved with the ruling of the Court of Appeal, Benin Division, the appellants/applicants through their solicitor, Messrs Don O. Egho & Co applied to the Court below for a certified true copy of the ruling on 16/2/2012, which was three (3) days after the ruling was delivered. A copy of the said letter is marked Exhibit J in the supporting affidavit. It is instructive to note that the said ruling was made available to the solicitors of the appellants/applicants after several visits to the Registry of the Court of Appeal on 5/3/2012.

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1.06 The solicitors to the appellants/applicants filed their application to seek leave to appeal on ground of facts and/or mixed law and facts on 23/3/2012 within the period prescribed by statute.

1.07 Thereafter solicitors to the appellants/applicants filed a Motion on the 26/3/2013 at the Supreme Court in Appeal No. SC.113/2013: E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh seeking for extension of time within which to appeal on grounds of facts and/or mixed law and facts.

1.08 Subsequently, the appellants/applicants briefed the law firm of Ken E. Mozia (SAN) & Co. to take over the appeal on 7/5/2015.

1.09 On perusal of the application filed on 26/3/2013, we discovered there was need to prepare a new process in order to bring out all the issues in controversy in this appeal and thereafter apply to this Hon. Court to withdraw the application dated 26/3/2013.

1.10 On 12/5/2015, the application filed on 26/3/2013 was withdrawn and consequently struck out. We thereafter filed another application on 11/5/2015 which we shall also apply to this Hon. Court to withdraw.

1.11 The proposed Grounds of Appeal seek to raise issues of mixed law and fact and leave of this Hon. Court is

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required for the Grounds to be filed and relied on.

1.12 The 1st, 8th and 9th respondents died during the pendency of this appeal. Leave of this Court is also required to delete or strike out their names as parties in this appeal.

1.13 We also respectfully opine that the proposed Grounds of Appeal seek to raise substantial issues for consideration.”

In his narration, learned counsel for the respondent in his written address before this Court, gave a different picture all together. He stated that consequent upon the aforesaid judgment, the appellants/applicants vide E. A. Marari (now deceased) brought an application unto the trial Court on behalf of the appellants/applicants to be allowed to collect the judgment sum of N700,000 which the respondent deposited at the Registry of the trial Court pursuant to an order of Court in that behalf. This application of E. A. Marari who was the first defendant at the trial Court was brought 20 months after the judgment was delivered. The trial Court granted that application vide Exhibit “DD” attached to the counter affidavit of the respondent. Learned counsel for the respondent stated further that after

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more than two years of the delivery of the trial Courts judgment, the applicants brought an application seeking the trial Court to set aside its judgment of 5/5/2006: staying the execution of that judgment pending hearing and determination of the application and for an order setting aside and or vacating the said judgment. On the 11/06/2009, the trial Court refused to grant the prayers sought by the appellants/applicants. Appellants/applicants appealed against that refusal which appeal has not been pursued at the Court of Appeal and was pending. Consequent upon the refusal by the trial Court, the respondent initiated steps to take possession of the land the subject matter of the said judgment.

See also  Mr. Victor Adelekan V Ecu-line Nv (2006) LLJR-SC

Learned counsel for the respondent stated further that, in order to forestall the respondent from reaping the fruits of the subsisting judgment of the trial Court, the appellants/applicants rushed to the Court below to file an application for the tripod prayer; for extension of time to seek leave; for leave and for extension of time to appeal against the judgment of the trial Court of 5/5/2006 in the suit referred to earlier and for

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another relief for stay of execution of the trial Court’s said judgment. At the hearing of the application, the appellants/applicants abandoned prayers a, b and d, leaving only prayer c. On the 13/2/12, the Court below delivered its Ruling refusing the remaining prayed by the appellants/applicants. The present application stems from that Ruling of the Court below of 13/2/12.

My lords, above, among others, are salient facts presented by both sides to this application. Ruling appealed against was delivered by the Court below on the 13/2/2012. This application was filed in this Court on the 25/5/2017. There is certainly a delay of almost five years, three months and twelve days. Although length of time between a Judgment/Ruling delivered and a date an appeal was filed against it may not always be a very strong factor against grant of extension of time to appeal, what is upper most, however, is the reason or reasons given by an applicant to justify the delay occasioned. This Court can only be convinced through the affidavit evidence placed by the applicants that there are good and substantial reasons which occasioned the delay.

Learned counsel relied on the depositions made by

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Mr. Nzediegwu in paragraphs: 4(b), 4(c), 4(e),4(f), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 22, 23 and 24 of his affidavit in support and referred this Court to same. Let me X-ray these depositions:

“4. That on the 28th November, 2016 about 12:00p.m. I was informed by Don O. Egho, Esq. of counsel to the appellants/applicants in the Court below in this matter in our office at plot 87A, Okoro-Otun Avenue, off Ikpokpan Road, GRA Benin city of the following facts and I verily believe him as follows:

b) That on the 13th day of February, 2012 the Court below delivered its ruling dismissing the appellants/applicants application for extension of time to seek leave to appeal etc. A copy of the ruling is annexed herewith and marked as Exhibit I

c). That the appellants/applicants aggrieved with the Ruling of the Court of Appeal, Benin Division delivered on 13/2/2012 applied for a Certified true Copy of the ruling vide a letter of their Solicitors Messrs. Don O. Egho, Esq. dated 16/2/2012. A copy of the said letter is annexed hereto and marked “Exhibit J. and a copy of the said ruling was eventually made available to him on 5/3/2012.

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That I am informed by the aforementioned solicitors that on checking his record after the receipt of the Hearing Notice fixing the hearing of the applicants application for leave to appeal for 27/3/2013 in the Court, he discovered that by which date time to appeal has elapsed on 14/5/2012.

  1. That I am informed by the afore-mentioned solicitors that the appellants being out of the period prescribed by the rules of Court, the Supreme Court is now seized with the appeal and it will be impossible to obtain leave to appeal from the Court below.
  2. That I am further informed by the aforementioned 2nd appellant/applicant that he was the person solely mandated by the Ubeji Community to engage the services of Messrs Don O. Egho to prosecute this appeal on behalf of the community.
  3. That I am informed by the aforementioned applicant that he fell sick shortly before the hearing of the appeal in the Court of Appeal on 16/11/2011. That he was referred by his doctor on 12th day of November, 2011 to the University of Benin Teaching Hospital, Benin City but his relatives decided to take him to a hideout where he could be treated by a

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Native Doctor. That he was in confinement for a period of 1 year and 2 months. That he was unable during the time to get in touch with their counsel who did not know his whereabouts.

  1. That I am informed by the aforementioned applicant and I verily believe him that the failure to apply for leave to appeal within the period prescribed by statute against the ruling of the Court below dated 13/2/2012 was also due to indisposition of their erstwhile solicitor Don O. Egho Esq who was involved in a motor accident on his way to the Court of Appeal, Benin City on the date the ruling was delivered and consequently hospitalised.
  2. That I am further informed by the aforementioned solicitor and I verily believe him that the reason for the failure to appeal within the period prescribed was compounded by the erroneous belief that the Court of appeal has jurisdiction to grant application for extension of time to appeal on grounds of facts and mixed law and fact after the period prescribed by statute has expired.
  3. That I am informed by the aforementioned 2nd applicant that he was eventually discharged from the Native Doctors Clinic on 20th day of March, 2013 by which date time

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to appeal has expired on 14/5/2012

  1. That I am informed by the aforementioned 2nd applicant that on 21/3/2013 other delegates sent along with him met Messrs Don O. Egho after he had inform him of his ordeal and he promised to file an appeal in the Supreme Court immediately and I verily believe him.
  2. That the aforementioned applicant informed me and I verily believe him that Messrs Don O. Egho filed a Motion on Notice dated 26/3/2013 in the Supreme Court praying for enlargement of time within which to apply for leave to appeal to the Supreme Court etc. A copy of the said motion is attached herewith and marked ‘Exhibit L’.
  3. That I am also informed by the aforementioned applicant that after they met with Messrs Don O. Egho, they returned home to report to the elders of Ubeji Community who instructed him and some others chosen to accompany him to go and brief Ken E. Mozia (SAN) to handle the case.
  4. That I am informed by Harold Erhabor, Esq. of counsel and I verily believe him that he filed an application on 11th day of May, 2015, in this appeal. The said application will also be withdrawn. A copy of the said motion on notice is

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attached hereto and marked as “Exhibit M”.

  1. That I am also informed by Harold Erhabor, Esq. and I verily believe him that grounds 1 and 2 contained in the proposed Notice of Appeal dated 5/2/2010 filed in the Court below borders on the jurisdiction of the High Court to entertain the plaintiff’s claim. See Exhibit H attached to this application.
  2. That the aforesaid counsel also informed me and I verily believe him that the Court of Appeal only considered the reasons for the delay in bringing the application by the appellants/applicants and it did not consider the proposed grounds of appeal. The proposed grounds of appeal were attached to the affidavit sworn to by the appellants/applicants and attached to the motion on notice dated 5/2/2010.
  3. That Harold Erhabor, Esq., of counsel informed me and I verily believe him that there is need to withdraw the application filed on 11/5/2015 at the Supreme Court and file a fresh one in order to fully determine the issues in controversy in this appeal.
  4. That Harold Erhabor, Esq. informed me and I verily believe him that the delay in filing this appeal was not

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deliberate but due to ill health of counsel, and 2nd applicant, oversight, inadvertence mistake and omission of counsel.

  1. That the Grounds of Appeal which the appellants solicitors Harold Erhabor, Esq. say will prima facie show good cause why the appeal should be heard notwithstanding that the period prescribed by law has expired is attached to this Motion and marked Exhibit N”.

In his written address referred to earlier, learned counsel for the respondent, after emphatically denying almost all the depositions in the affidavit in support of the applicants’ motion on Notice, submitted as follows:

“The appellants/applicants’ supporting affidavit is riddled with falsehood with the sole aim of pulling a wool in the eyes of the Court.”

In the Counter Affidavit filed on 09/08/17, sworn to by the respondent, the respondent deposed to the following facts, among others:

“3. That I have read the said 30 paragraph affidavit in conjunction with my solicitors and I verily understood same.

  1. That paragraphs 3, 4, 5, 6,7, 8,9, 10, 11, 12 and 20 of the affidavit in support of the application dated 25th day of May, 2017 are issues of falsehood made to mislead the Court.

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That in further reply to the averments in paragraphs 3, 4, 5, 6, 7, 8, 9, 10, I 1 , 12 and 20 of the affidavit that are denied, I stated as follows:

a) That prior to the death of the 1st appellant/applicant, he is in conjunction with 2nd – 20th appellants/applicants were represented by the same counsel.

b) That I bought a piece/parcel of land measuring seven (7) acres from the 1st set of appellants/applicants community for N1,680,000.00 (one million, six hundred and eighty thousand naira only).

c) That I took out a Writ of Summons against the 1st set of appellants/applicants on the 6th day of January, 2001, when the 1st set of appellants/applicants failed to perfect the sale.

d) That on the 3rd day of June, 2003 by an order of Court, the 2nd set of appellants/applicants were joined as defendants by the trial Court.

e) That on the 8th day of April, 2004, E. O. Ekpoko, Esq. entered appearance for the appellants/applicants and filed their joint statement of defence.

f) That on the 20th day of June, 2005 E. O. Ekpoko, Esq. withdrew as counsel to the appellants/applicants where

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upon the trial Court ordered that hearing Notice be served on each of the appellants/applicants.

g) That the trial Court further issued the same order on the 10th day of October, 2005 as averred in paragraph (f) above.

h) That consequent upon the facts deposed to in paragraphs (f) and (g) above, the Bailiff of the trial Court effected service of the hearing Notice on the following appellants/applicants 1st, 2nd, 3rd, 6th, 8th, 9th, 12th, 14th, 15th, 16th, 17th, 18th, 19th and 20th.

i) That the 4th, 5th, 7th, 10th and 11th appellants/applicants evaded service.

j) That on the 20th of February, 2006, my solicitors brought an application unto the trial Court ordering that hearing notice be pasted on the “Ogwa” that is the Town Hall of Ubeji Town.

k) That on the 13th day of April, 2006 after several hearing notices were issued and served on both sets of appellants/applicants the matter was heard with the respondent/respondent testifying on his own behalf.

l) That after the evidence-in-chief of the respondent/respondent, the Trial Court further ordered that hearing notice should be issued and served on the defendants by pasting same on the wall of the Town Hall at Ubeji.

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m) That on the 5th day of May, 2006, Hon. Justice A. P. E. Awala (of blessed memory) of the High Court of Justice, Warri, Delta State (as he then was) gave judgment in favour after address by my counsel on the 2nd day of May, 2006.

n) That on the 17th day of February, 2007, my solicitors wrote to the Chairman of the 1st set of appellants/applicants community to come and collect the said judgment sum of N700,000.00 but they refused. A copy of the said letter is hereby attached and marked as Exhibit AA.

o) That consequent upon this refusal as averred above, my solicitors brought an application at the trial Court asking the Hon. Court to direct that the judgment sum be paid into the Registry of the trial Court, which said application was granted. A copy of the said Enrolment of Order is hereby attached and marked as Exhibit “BB”.

p) That on the 11th day of January, 2008 about 20 (twenty) months after the judgment was delivered the 1st set of appellants/applicants brought an application at the trial Court through their counsel L. U Unokesan, Esq. (of blessed memory) praying the trial Court to order the release of

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the said judgment sum of N700,000.00 in the custody of the Assistant Chief Registrar, High Court Registry, Warri to the 1st set of appellants/applicants (Mr. Emmanuel Matari of blessed memory) who was the General Secretary of the Community for himself and on behalf of the 1st set of appellants/applicants. A copy of the said application is hereto attached and marked as Exhibit CC.

q) That the trial Court granted the application and that the document now shown to me and marked as Exhibit “DD” is the record of proceedings of the 23rd day of January, 2008.

r) That pursuant to the above order of Court, Emmanuel Malari brought an application to the assistant Chief Registrar to collect the said judgment sum of N700,000.00 (seven hundred thousand naira) being the balance for the sale of seven (7) acres of land at Ubeji for himself and on behalf of the 1st set of defendants. A certified true copy of the said application is attached and marked as Exhibit “EE.

s) That on the 24th day of January, 2008 Emmanuel Malari signed and collected the said sum of N700,000.00 (seven hundred thousand naira) from the Assistant Chief

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Registrar of the High Court of Justice, Warri. A certified true copy of the receipt issued in connection thereto is attached and marked as Exhibit “FF”.

  1. That I am informed by Patrick Oganwu, my lead solicitor and I verily believe that it is important to apply for the certified true copy (CTC) of Emmanuel Malari’s application to the Assistant Chief Registrar and the receipt with which he collected the said judgment sum from the Assistant Chief Registrar in support of our case.
  2. That the document now shown to me and marked as Exhibit “GG” is the said application to the Assistant Chief Registrar of the High Court of Justice, Warri.
  3. That after the 1st set of appellants/applicants collected the said sum of N700,000.00 (seven hundred thousand naira) pursuant to the trial Court’s order the 1st set of appellants/applicants issued me a receipt on the 24th day of January, 2008.
  4. That the document now shown to me and marked as Exhibit ‘HH’ is the said receipt issued by the 1st set of appellants/applicants evidencing the balance payment with respect to the purchase of the land by me at Ubeji and in accordance with the judgment of the trial Court.

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That after the 1st set of appellants/applicants collected the judgment sum the 1st set of appellants/applicants executed a Deed of Conveyance in my favour in furtherance of the judgment of the trial Court. Attached hereto and marked as Exhibit “JJ” is a copy of the said Deed of Conveyance.

  1. That there were no developments on the said parcel of land covered by Survey Plan No. DC/DT/01/05 since late 80s and early 90s.
  2. That after more than two (2) years after the trial Court gave judgment in my favour, the appellants/applicants brought an application at the trial seeking orders of Court to wit:

a. An order extending time within which the appellants/applicants apply to this Court to set aside its judgment delivered on the 5th day of March, 2006.

b. An Order staying execution and/or further execution of the judgment of this Hon. Court delivered on the 5th day of May, 2006 pending the hearing and determination of this application.

c. An Order setting aside and/or vacating the judgment of this Hon. Court delivered on 5th day of May, 2006.

  1. That the trial Court in a well-considered Ruling delivered on the 11th day of June 2009 refused granting

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the prayers sought by the appellants/applicants.

  1. That upon refusal of the said application by the trial Court the appellants/applicants filed an appeal against the Ruling of the trial Court.
  2. That the appellants/applicants have since abandoned the said appeal.
  3. That upon the refusal of the said application by the trial Court, the respondent/respondent started taking steps to take possession of the land the subject matter of the said judgment.
  4. That to forestall me from reaping the fruits of the subsisting judgment of the trial Court, the appellants/applicants rushed to the Court of Appeal, Benin City to file an application seeking the following orders of Court to wit:

a. AN Order granting extension of time within which the defendants/appellants/applicants shall apply for leave to appeal to the Court of Appeal, Benin City against the judgment of Hon. Justice A.P.E Awala (as he then was) of the High Court of Justice, Warri, Delta State delivered on the 5th day of May, 2006 in Suit No. W18/2001: Dr. Richmond Sisan Leioh v. E. A. Malari 19 Ors

b. AN Order granting leave to the Defendants/appellants/

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applicants shall apply for leave to appeal to the Court of Appeal, Benin City against the judgment of Hon. Justice A. p. E. Awala (as he then was) of the High Court of Justice, Warri, Delta State delivered on the 5th day of May, 2006 in Suit No. W18/2001: Dr. Richmond Sisan Leigh v. E. A. Malari 19 Ors on the grounds of mixed law and facts and facts only as shown on the proposed Affidavit in support of this Motion.

c. An Order staying execution of the aforesaid judgment pending the hearing and determination of the appeal to be filed against the judgment.

  1. That at the hearing of the appellants/applicants Motion, the applicants abandoned prayers 17(a), 17(b) and 17(d) voluntarily, leaving only prayer 17(c). That the Court below did not instruct the applicants to withdraw prayers 17(a), 17(b) and 17(d).

19 That the Court of Appeal, Benin Judicial Division in a well considered Ruling delivered on the 13th day of February, 2012 refused granting the remaining prayers sought by the appellants/applicants.

  1. That the Ruling of the Court of Appeal is hereto attached and marked as Exhibit KK.

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21.That more than ten (10) years after the trial Court gave judgment in my favour the appellants/applicants did not take step(s) to appeal the judgment of the trial Court.

  1. That the 1st set of appellants/applicants knew that the 1st appellant/applicant now deceased brought an application unto the trial Court to collect the judgment sum and did so on their behalf.
  2. That after they became aware that the 1st appellant/applicant collected the said judgment sum, they neither returned the money nor did they report the 1st appellant/applicant to the Police.
  3. That consequent upon the Ruling of the Court below as borne out by Exhibit “KK”, the appellants/applicants filed an application at the Court below wit:

a) An Order granting leave to the 2nd to 20th Defendants/appellants/applicants to appeal to the Supreme Court against the Ruling/Decision of the Court of Appeal, Benin Judicial Division delivered on the 13th day of February, 2012 on grounds of mixed law and facts and facts only as shown in the proposed notice and grounds in support of this Motion and marked as Exhibit ‘DOE2’.

b) An Order staying execution of the judgment delivered on

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the 5th day of May, 2006 by Hon. Justice A. P. E. Awala, judge (as he then was) of the High Court of Justice, Warri, Delta State pending the hearing and determination of this application and/or of the appeal to be filed against the judgment.”

  1. That over five (5) years after the Ruling/Decision of the Court of Appeal Benin Judicial Division appellants/applicant application for leave has not been moved neither have the appellants/applicants appealed the judgment of the trial Court delivered over twelve (12) years ago.
  2. That to forestall me from reaping the fruits of the subsisting judgment of the trial Court the appellants/applicants filed an application at the Supreme Court to wit:
See also  African Continental Bank Plc Vs Obmiami Brick And Stone (1993) LLJR-SC

a. ‘An Order granting enlargement of time within which to apply for leave to appeal to the Supreme Court against the Ruling/Decision of the Court of Appeal, Benin delivered on the 13/02/12 in Suit No. CA/B/23n/2010: E. A. Malari & 19 Ors v. Richmond Sisan Leigh.

b. An Order granting leave to appeal to the Supreme Court against the said Ruling/Decision on grounds of mixed law and facts and facts only as shown in the proposed grounds of appeal annexed to the affidavit in support of this Motion

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and marked as Exhibit “DOE6.

c. An Order granting enlargement of time within which to appeal to the Supreme Court against the said Ruling/Decision of 13/02/2012 on grounds of mixed law and facts only.

d. An Order granting stay of execution of the judgment of Hon. Justice A. P. E. Awala (as he then was) of the High Court of Justice, Warri, Delta State delivered on the 5/5/06 in Suit No. W18/2001: Dr. Richmond Sisan Leigh v. E. A. Malari & 19 Ors pending the determination of this application.

  1. That in specific respond(sic) to paragraphs 8 and 9 of the appellants/applicants averments in the affidavit in support of their Motion, I know as a fact that the 2nd appellant/applicant was not sick at any time.
  2. That I also know as a fact that this matter is a representative action and that other appellants/applicants were well and of sound health.
  3. That I know as a fact that Don. O. Egho runs a firm of Legal Practitioners: and that there are other Lawyers in the Law Firm as per Exhibit “LL” hereto at the Supreme Court.
  4. That on the 12th day of May, 2015, the

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appellants/applicants filed unto Court an application for change of counsel which was the date the matter was to be heard at the Supreme Court.

  1. That in order to forestall the proceeding at the Supreme Court the appellants/applicants brought an application wit:

a) An Order of this Hon. Court extending the time within which the appellants/applicants may seek leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Judicial Division delivered on the 13th day of February, 2012 in appeal No. CNB/23M/2012 E. A. Malari & 19 Ors v. Richmond Sisan Leigh which ruling dismissed the appellants/applicants motion seeks extension of time within which they may appeal against the judgment of the trial High Court delivered on the 5th day of May, 2006.

b) An Order of this Honourable Court granting appellants/applicants leave to appeal on grounds of facts and/or mixed law and facts against the interlocutory ruling of the Court of Appeal, Benin Division delivered on the 13th February, 2012 in Appeal No. CA/B/23m/2010 dismissing the appellants’ application for extension of time within which

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they may appeal.

c) An Order of this Hon. Court extending the time within which the appellants/applicants may appeal the ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 appellants application for extension of time within which they may appeal.

d) An Order striking out the names of E. A. Malari (deceased) Olaraja Evenuberu Emami (deceased) and Pa Agbekuku Mone (deceased) who are 1st, 8th and 9th appellants/applicants respectively in this appeal.

  1. That in order to further forestall the proceeding at the Supreme Court, the appellants/applicants have further filed onto Court a fresh Motion dated 8th day of May, 2017 and filed on the 25th day of May, 2017 to wit:
  2. An Order of this Hon. Court extending the time within which the appellants/applicants may seek leave to appeal against the Ruling of the Court of Appeal, Benin Division delivered on the 13th February, 2012 in Appeal No. CA/B/23m/2010: E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh dismissing the applicants’ application for extension of time within which they may appeal.
  3. An Order of this Hon. Court granting the applicants leave to appeal against the ruling of the Court of Appeal,

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Benin Division delivered on 13th February 2012, in Appeal No. CA/B/23m/2010: E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh dismissing the applicants’ application for extension of time within which they may appeal.

  1. An Order of this Hon. Court extending time within which the applicants may appeal against the ruling of the Court of Appeal Benin Division delivered on 13th February, 2012 in Appeal No. CA/B/23M/2010: E.A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh dismissing the applicants application for extension of time within which they may appeal.
  2. An Order of this Hon. Court granting the applicants extension of time within which to apply for leave to appeal against the ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 E.A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh on grounds of facts and/or mixed and facts.
  3. An Order of this Hon. Court granting the applicants leave to appeal against the ruling of the Court of Appeal, Benin Division delivered on 13th February, 2012 E.A Malari & 19 Ors v. Dr. Richmond Sisan Leigh on grounds of facts

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and/or mixed law and facts.

  1. An order striking out the names of E.A. Malari (deceased) Olaraja Evenuberu Emani (deceased) and Pa Agbekuku Mone (deceased) who are 1st, 8th and 9th appellants/applicants respectively in this appeal.
  2. That I know as a fact that it is not only the 1st, 8th and 9th appellants/applicants that are deceased. That the 6th appellant/applicant is also deceased as per the appellants/applicants Exhibit G attached to the affidavit in support.
  3. That the delisting of the 1st appellant/applicant is the main motive of prayer 6 on their Motion Paper dated 8/5/2017 and filed on the 25/5/2017
  4. That my solicitors Messrs Patrick Oganwu & Associates inform me and verily believe that the appellants/applicants have nothing to appeal against’ since they have collected the judgment sum and executed a Deed of Conveyance in my favour.
  5. That I am informed by my solicitor Messrs Partrick Oganwu & Associates and I verily believe that the appellants/applicants have not placed facts different from the ones placed by them at the Court of Appeal to warrant the grant of the prayers contained in their Motion Paper.

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That my said solicitors Messrs Patrick Oganwu & Associates further inform me and I verily believe that this application is an abuse of Court process and brought in bad faith to forestall me from reaping the fruit of the subsisting judgment of the trial Court.

  1. That it is in these circumstances that I depose to this Counter Affidavit conscientiously believing the contents to be true and correct and in stiff opposition to the prayers being sought as per Motion Paper filed on the 25th day of May, 2017.”In the further and better affidavit particularly one filed on 12/10/17 the applicants denied almost all the facts deposed to by the respondent in his Counter Affidavit and deposed to the following:
  2. That on the 9th of October, 2017 about 12:00 p.m I was informed by Harold Erhabor, Esq., of counsel in the law firm of Ken E. Mozia (SAN) & Co., counsel to the appellants/applicants in this matter, in our office at Plot 87A, Okoro-Otun Avenue, Off Ikpokpan Road, GRA, Benin City of the following facts and I verily believe him as follows:

a. That he has seen and read the respondent’s Counter Affidavit filed on 9/8/17 in opposition to appellants/

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applicants Motion on Notice filed on 25/5/17 as well as the exhibits annexed thereto and the brief of argument.

b. That the deposition of Dr. Richmond Sisan Leigh in the Counter Affidavit are untrue or replete with half truth as they do not represent the true position of the matter before this Hon. Court.

c. That the respondents deposition in his Counter Affidavit is grossly inaccurate, misconceived and calculated to mislead this Hon. Court.

d. That the depositions made in paragraphs 5(f), 5(g), 5(h), 5(i), 5(k), 5(t), 5(n), 5(o), 5(p), 5(q), 5(r) and 5(s) of the Affidavit in support are false, untrue and misleading.

e. That contrary to the deposition in paragraphs 5(p) 5(s) of the Counter Affidavit the appellants/applicants did not authorize Emmanuel Malari to collect the sum of N700,000.00 (seven hundred thousand naira) in the custody of the Assistant Chief Registrar, High Court of Justice, Warri on behalf of the 1st set of appellants/applicants.

f. That contrary to the deposition in paragraph 5(s) of the Counter Affidavit, the purported receipt marked Exhibit “FF” was witnessed by E. P Fregene a solicitor in the law firm

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of Patrick Oganwu & Associates, counsel to the respondent and not L U. Unokesan, Esq. who was alleged to have been the solicitors to the E. A. Malari.

g. That the contents of the deposition in paragraphs 5(k) – 5(s) of the Counter Affidavit are illogical based on falsehood and confused reasoning as evidenced by respondent”s Exhibits “EE” and “FF”.

h. That contrary to the deposition in paragraph 5(r) of the Counter Affidavit, the content of Exhibit “DD” annexed thereto is a blatant falsehood and a forgery as there is no body or existing lawyer by the name N. U. Unokesan, Esq.

i. That contrary to the content of Exhibit “DD” the alleged counsel to the 1st set of the appellants/applicant is L. U. Unekesan of blessed memory.

j. That the alleged counsel L. U. Unekesan of blessed memory, solicitors to the plaintiff, i.e. Dr. Richmond Sisan Leigh claimed to have moved Motion on Notice filed on 15/1/2008 on the 23/1/2008 which was taken and granted same day. See Exhibit “DD” of the respondent attached to the Counter Affidavit. In the affidavit in support, Emmanuel Malari was referred to as the 1st plaintiff/applicant.<br< p=””

</br<

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That on the following day i.e. 24/1/2008, the said E. A. Malari applied to the ACR in writing to collect the sum of N700,000.00 (seven hundred thousand naira) without annexing the Enrolment of Court order of 23/1/2008 to the said application which was witnessed by E. P. Fregene, Esq. who appeared with Patrick Oganwu, Esq. on 23/1/2008 of counsel to the respondent. See Exhibits DD”, ‘EE” and “FF” of the respondent annexed to the Counter Affidavit.

l. That in further reply to the deposition in paragraph 5(r) of the Counter Affidavit, the appellants/applicants aver that the said E. P. Fregene, Esq. of Patrick Oganwu & Co. moved the application dated 24/10/2007 and filed on the 25/10/2007 praying the trial High Court for an order directing the plaintiff/applicant to pay into the Registry of the High Court the sum of N700,000.00 (seven hundred thousand naira) in line with the judgment delivered on 5/5/2006. See Exhibit BB” annexed to the Counter Affidavit of the Respondent.

m. That the depositions made in paragraphs 4, 6, 7, g, 9, 10, 11,13, 14, 15, 16, 17, 18, 19,22,23,24,25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37 and 38 0f the

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Counter Affidavit in opposition are misleading.

n. That in further reply to paragraph 5(p) of the Counter Affidavit the appellants/applicants say that the purported application filed on 15/1/2009 by E. A. Malari (deceased) was not with the consent, mandate and authority of the appellants/applicants herein.

o. That in further answer to paragraph 5(r) of the respondent/respondent Counter Affidavit, the appellants/applicants say that the respondents Exhibit “JJ” annexed to his Counter Affidavit is a blatant falsehood and a forgery as there is nobody or any existing human being by the names Emmanuel Okuemaluwa and Bawo Eboye i.e. 1st and 2nd Vendor in Ubeji Community in Wani South Local Government Area of Delta State.

My lords, in treating this application, I find it convenient to consider the two Issues together, raised for determination by both learned counsel for the respective parties. It is now beyond any peradventure in the legal circle in this country that for the grant of an application for enlargement/extension of time within which to appeal or within which (where necessary) to seek leave to appeal and its (the latter’s)

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other concomittent/complimentary reliefs i.e. for leave to appeal and for extension of time within which to appeal the Courts especially this Court, have/has made it abundantly clear that the applicant must comply with the requirements of the law, Rules of Court and practice. In other words:

a) Where a person who intends to appeal has not, for some reasons, filed his appeal within the time prescribed by law/Rules of Court then he has to seek for extension of time to comply with the stipulations of those Laws/Rules of Court

b) Where an appeal is by the constitutional provision, to be initiated by leave of Court and the time within which to seek for that leave has lapsed, then a person has to apply for:

i. Extension of time within which to seek leave to appeal;

ii. leave to appeal and;

iii. extension of time within which to appeal/file a Notice of appeal

Reliefs (bxi) – (iii) are what are generally referred to as the three legged prayers”, “tripod prayers, ”or” “trinity prayers).

In each of the above instances, the provisions of the law/rules of Court, to be set out anon, must be complied with. These are:

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(A) Section 27(2) of the Supreme Court Act which provides as follows:

”27(2) The periods prescribed for giving of notice of appeal or notice of application for leave to appeal are:

a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision.

b) in an appeal in a criminal case thirty days from the date of the decision appealed against.

  1. The Supreme Court may extend the period prescribed in Subsection (2) of this Section: (underlining supplied for emphasis)

Order 2 Rule 31 of the Supreme Court Rules provides:

“31(1) The Court may enlarge the period provided by these Rules for the doing of anything to which these Rules apply-

(2) Every application for an enlargement of time in which to appeal or in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period.

There shall be exhibited or annexed to such affidavit:

a. a copy of the judgment from which it is intended to appeal.

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a copy of other proceedings necessary to support the complaints against the judgment

c. grounds of appeal which PRIMA FACIE show good cause why the appeal should be heard.” (underlining for emphasis)

Thus, by the above provisions, if there shall be any appeal on:

i. final decision of the Court of Appeal in a civil matter to this Court, that appeal (must) be filed by the prospective appellant within three (3) months from the date of decision;

ii. an interlocutory decision of the Court of Appeal in a civil matter to this Court that appeal shall (must) be filed by the prospective appellant within fourteen days from the date of the decision appealed against.

iii. in an appeal from the decision of the Court of Appeal in criminal matters (cases) to this Court, the prospective appellant shall (must) file his appeal within a period of thirty days from the date of decision by Court of Appeal.

The applicants in this motion say that their intended appeal is a civil one and is from a final decision/ruling of the Court of Appeal (page 129, paragraph 4.01 of the applicants’ address). The appeal is caught up by the last lab of Section 27(2)(a) of the

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Supreme Court Act. That is, that appeal ought to have been filed within three months from the date of Court of Appeal’s Ruling of 13th February, 2012. Further, the learned counsel for the applicants stated that the grounds of appeal do not involve questions of law alone and this necessitates applicants’ resort to Section 233(3) of the Constitution (page 129, paragraph 4.02- page 130 of learned counsel written address).

The conditions stipulated by Order 2 Rule 31 of the Rules are that:

a) the applicant(s) shall (must) furnish the Court with affidavit evidence which sets out good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period as per Order 2 Rule 31(2) of the Rules of this Court.

b) the applicant(s) shall (must) show that he has grounds of appeal which PRIMA FACIE show good cause why the appeal should be heard. In other words, he has arguable grounds of appeal.

It is then the duty of the Court to examine, evaluate or assess the affidavit evidence and any necessary exhibits such as the Notice of Appeal which contains the proposed grounds of appeal attached to affidavit in

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support with a view to taking a decision on whether to grant or refuse the reliefs sought by the applicant(s). This necessarily involves exercise of judicial and judicious discretion of the Court See: Re Adewumi & Ors (1988) 3 NWLR (Pt 82) 483; Co-operative & Commerce Bank (Nig) Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt 284) 630.

The reasons given by the applicants in their affidavit evidence can be broadly classified as follows:

i. Sickness of 2nd applicant, Mr. Akoma Dudu and of an erstwhile counsel Mr. Don O. Ogho who was handling the matter for the applicants.

ii. Inadvertence, error or mistake of counsel and;

iii. Other reasons considered (perceived) by the applicants to be good and substantial i.e. good and substantial reasons.

On the first condition, it is my belief, my lords, that even the ordinary man on the street knows what is good. In ordinary usage, it connotes a high standard or quality which is opposite to bad or poor. Anything good in law is something which is valid, sufficient, effectual, unobjectionable, sound and or responsible. Thus, an application for extension of time within which to appeal or within which to seek leave to appeal is not granted

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as a matter of cause. To be entitled to the indulgence of the Court, an applicant(s) must advance cogent, credible and convincing reasons for the delay. See: Bank of Baroda v. Mercantile Bank (1987) 3 NWLR (Pt.60) 233.

On the sickness of the 2nd applicant as a reason, the affidavit evidence by the applicants, avers to the following facts:

I. “8. That I am informed by the aforementioned applicant that he fell sick shortly before the hearing of the appeal in the Court of Appeal on 16/11/2011. That he was referred by his doctor on 12th day of November, 2011 to the University of Benin Teaching Hospital, Benin city but his relatives decided to take him to a hideout where he could be treated by a Native Doctor. That he was in confinement for a period of one year and two months. That he was unable during the time to get in touch with their counsel who did not know his whereabouts.

That I am informed by the aforementioned 2nd applicant that he was eventually discharged from the Native Doctors Clinic on 20th day of March, 2013 by which date time to appeal has expired on 14/5/2012. (underlining for emphasis)<br< p=””</br<

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On the sickness of the erstwhile, learned counsel for the applicants, Mr. Don O. Egho, the deponent to the facts in the affidavit evidence averred as follows:

“4. That on the 28th of November, 2016 about 12:00 p.m. I was informed by Don O. Egho, Esq., of counsel to the appellants/applicants in the Court below in this matter in our office at Plot 87A, Okono-Otun Avenue, Off Kpokpan Road, GRA, Benin City of the following facts and I verily believe him as follows:

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(e) That an application for leave to appeal dated 23rd of March, 2012 was accordingly filed at the Court of Appeal, Benin Division. A copy of the said application is attached hereto and marked “Exhibit K’.

(f) That since filing the appeal he has been in very poor health and constantly been receiving medical treatment.”

(g) That I am informed by the aforementioned applicant and I verily believe him that the failure to apply for leave to appeal within the period prescribed by statute against the ruling of the Court below dated 13/2/2012 was also due to indisposition of their erstwhile solicitor Don O. Eqho, Esq.. who was involved in a motor accident on his way to the Court of Appeal.

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Benin City on the date the ruling was delivered and consequently hospitalised. ”

(underlining for emphasis)

From the affidavit evidence, the decision/ruling of the Court below sought to be appealed against was delivered on the 13th day of February. 2012 (paragraph 4(b) of the affidavit in support; paragraph 19 of the respondent’s counter Affidavit filed on 09/08/17). That ruling refused the applicants extension of time to seek leave to appeal the judgment of the trial Court which was delivered on 5th May, 2006 against the applicants and in favour of the respondent.

The first attempt (effort) made by the applicants to apply for extension of time to seek leave to appeal against the said judgment of the trial Court of 5/5/2006, was in 2010. paragraph 3(m) of the affidavit in support states’

“That the appellants/applicants being dissatisfied with the judgment of the Delta State High Court delivered on 13/2/2012 filed an application on 5/2/2010 before the Court of Appeal, Benin Division in Appeal No. CA/B/23m/2010. E. A. Malari & 19 Ors v. Dr. Richmond Sisan Leigh seeking for extension of time to apply for leave to appeal, leave to

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appeal and extension of time to file Notice of Appeal. A copy of the said Motion on Notice with the supporting affidavit, documents and Exhibits are annexed hereto and are collectively marked as Exhibit H.”

Looking at the dates given in the averment above, something is wrong or fishy. The dates do not correspond.

Again, it is in evidence that after the delivery of the trial Court’s judgment, the applicants claimed that they only became aware of the said judgment on the 18th day of February, 2008, when Writs of Possession were served on the property owners and or third parties on the land in dispute. (paragraphs 3(h) and (i) of the affidavit in support). In paragraph 3(j) the deponent averred:

“(j). That the appellants/applicants immediately briefed one E. T. Edema, Esq., who advised them to apply to the trial High Court to set aside the judgment.”

Thus, the first time the applicants approached a counsel (E. T. Edema, Esq.,) was, presumably, in the month of February, 2008, or to be more precise on the 18th of February, 2008. This is because the date of briefing the learned counsel (although it was said to be “immediately” after becoming aware of the

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judgment) has been shrouded in mystery by the applicants. It is however very clear that there was a period of over two years, not from the date of delivery of the judgment by the trial Court, but from the date applicants claimed to become aware of the judgment. There was certainly non-chalance and inaptitude from the applicants. There was tardiness. There is no explanation by the applicant in their affidavit evidence on this inaptitude and tardiness.

On the sickness of the 2nd applicant, Mr. Akoma Dudu, it is to be noted that it was deposed to in the affidavit evidence, by the applicants paragraph 8 that he was sick and was referred by his Doctor on the 12th of November, 2011 to the University of Benin Teaching Hospital, Benin City. There is nothing to support that fact or assertion. It is my belief that in an age of scientific and technological developments, and where transactions, especially relating to human health are conducted in most cases literary, it is difficult for anybody to believe that no referral letter, certificate or document is issued by the Doctor or Medical officer who referred the patient to another hospital/Doctor for

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further medical attention. Part of the same reason is the claim of indisposition of the applicants’ erstwhile counsel, Don O. Egho, Esq., who was said to have been involved in a motor accident on his way to Court of Appeal, Benin on the date Ruling was delivered and he was hospitalized.

In his Counter Affidavit of 09/08/17, the respondent made a categoric denial on these sicknesses and averred as follows:

“27. That in specific respond (sic) to paragraphs 8 and 9 of the appetiants/appticants averments in the affidavit in support of their motion, I know as a fact that the 2nd appellant was not sick at any time.

  1. That I know as a fact that this matter is a representative action and that other appellants/applicants were well and of sound health.
  2. That I know as a fact that Don O. Egho runs a firm of Legal Practitioners: and that there are other lawyers in the Law Firm as per Exhibit “LL” hereto attached.”

In his arguments in his written address (brief) in support of the motion, learned counsel for the respondent submitted:

“In that said paragraph 8, the appellants/applicants’ deponent Averred that Akoma Dudu – 2nd applicant was sick.

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It is worthy of note that he made mention of the fact that the 2nd applicant “was referred by his doctor on the 12th of November, 2011 to the University of Benin Teaching Hospital, Benin City” but failed to attach and/or annex a copy of the said referral letter in his affidavit to confirm the truth of the said paragraph.

We submit that a referral made by a medical doctor is always documented for the referral hospital/clinic to act upon, assuming but not conceding that the 2nd appellant/applicant was sick. Failure of the 2nd appellant/applicant to attach the said referral letter is fatal to their assertion. We therefore urge my lords to discountenance the same assertion.

Similarly, the averment in paragraph 9 of the appellants/applicants supporting affidavit did not hold any water as the same counsel whom the appellants/applicants averred had an accident on the day the Ruling of the Court of Appeal was delivered i.e. 13/2/2012 and was hospitalised, applied for the certified true copy of the said Ruling timeously via his letter dated 16th of February, 2012, 3 days after the Ruling was delivered. Where their lies the inadvertence of counsel Question begging for answer.”

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My lords, I took time to cross-check all the further affidavits in support filed by the applicants, I could not locate specific denials on the above facts averred to by the respondent. In law such averments are taken to be correct, valid and admissible. See: Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 145; Orianzi v. A-G Rivers State & Ors (2017) 271 LRNC 150.

Parties to a civil matter should know that where they prosecute or defend a matter in a representative capacity, as is the case with the applicants, they have every right to assign anyone of them to step into the shoes of the one who handles their litigation, where, if exigencies demand, for instance, sickness or other debilitating factors, the latter is unable to proceed with the assignment given to him by those he represents. Equally, it is foolhardy for a counsel representing a party, where it is shown that he has other qualified counsel in his firm to claim that the matter he is handling in Court cannot go on because he is sick. It is even more dangerous where a party or litigant insists that only a particular counsel from a law firm that must handle his matter in Court although he has the

58

the Constitutional right to have a counsel of his choice. What of if, God forbids, that counsel dies or is permanently indisposed This, I believe is one of the few instances where a party must take a quick, effective and spontaneous decision in relation to the way and manner counsel handles his case. Otherwise, he must bear the consequence of the inaptitude, negligence or any act of God befalling his chosen counsel. Mistake, inadvertence and sickness of counsel should always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel.

The second condition of Order 2 R 31 is for the proposed Grounds of Appeal to be prima facie, arguable, giving such good grounds why the appeal should he heard. It is not the business of the Court at this point in time to form an idea on the success of the grounds of appeal or not, but whether prima facie, arguable. See: University of Lagos v. Olaniyan (supra); Ibodo v. Enarofia (1980) 5 – 7 SC 42; Obikoya v. Wema Bank (supra); Oba v. Onoqun (1972) 1 All NLR (Pt.1) 95; Ojukwu v. Gov. Lagos State (1985) 2 NWLR (Pt.10) 806.

The affidavit evidence in support of the

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application states:

“24. That the Grounds of Appeal which the appellants’ solicitors Harold Erhabor, Esq., say will prima facie show good cause why the appeal should be heard notwithstanding that the period prescribed by law has expired is (sic) attached to this motion and marked Exhibit N.’

  1. That the appellants/applicants are interested in prosecuting this appeal and Harold Erbabor, Esq., of counsel informed me in our office at Plot 87A, OkoroOtun Avenue, off lkpokpan Road, GRA, Benin City by 10.00a.m. on 7/5/2015 and I verily believe him that substantial and arguable points of law are sought to be raised in the proposed Grounds of Appeal as contained in the proposed Notice of Appeal.”

The respondent, on the other hand, averred as follows:

“35. That my solicitors Messrs Patrick Oganwu & Associates informed me and I verily believe that the appellants/applicants have nothing to appeal against, since they have collected the judgment sum and executed a deed of conveyance in my favour.

  1. That I am informed by my solicitors Messrs Patrick Oganwu & Associates and I verily believe that the appellants/applicants have not placed facts different

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from the ones placed by them at the Court of Appeal to warrant the grant of the prayers contained in their Motion paper.”

My lords, it is trite law that for a proposed ground of appeal to show good cause why the appeal should be heard, it has been held in legion of authorities that such a ground should inter alia:

a) raise substantial issues of facts or law for the consideration of the Court;

b) cannot just be dismissed with a mere wave of the hand or totally lacking in substance;

c) evoke serious debate about the correctness of the decision of the Court below;

d) tax the intellect and reasoning faculties of the appeal judge and

e) not be frivolous.

See: Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96), 157; lbodo v. Enarofia (1980) 5 – 7 SC 12; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; Kotoye v. Saraki (1995) 5 NWLR (Pt3 95) 256; Yesufu v. Co-operative Bank Ltd. (1989) 3 NWLR (Pt.110) 483; Doherty v. Doherty (1964) 1 All NLR 299; Lamai v. Orbih (1980) 5 – 7 SC 28.

The proposed grounds of appeal exhibited in paragraph 24 of the Affidavit in support of the motion on Notice as Exhibit “N” are four (4) in number.

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Proposed ground of appeal No. 3, shorn of the quoted of the judgment of the Court below reads as follows:

“3. The learned justices of the Court of Appeal erred in law and came to a wrong decision which is perverse when they held thus:

PARTICULAR OF ERROR

a) Grounds 1 and 2 of the appellant’s proposed Grounds of Appeal in the notice of appeal which was annexed to the affidavit in support of the motion questions the jurisdiction of the trial High Court to entertain the suit.

b) In an application for extension of time within which to apply for leave to appeal where, a proposed ground complains of jurisdiction, it would not be necessary to inquire whether there were good and substantial reasons for failure to appeal within the prescribed time.

c) Once the issue of jurisdiction is raised, the length of time before the application is brought is irrelevant if the judgment sought to be appealed against was given without jurisdiction.

d) Since jurisdiction is a strong point in the application before the Court of Appeal the application ought to be granted as it is never too late to appeal against a judgment

62

given without jurisdiction.

e) The question of jurisdiction is a constitutional issue which may be raised at any stage of a proceeding even for the first time in the Supreme Court.

It is alleged in the purported grounds of appeal (particularly (a) thereof) that grounds 1 and 2 of the appellants proposed grounds of Appeal in the Notice of Appeal annexed to the affidavit in support of the motion on notice before the Court below questioned the Jurisdiction of the trial High Court to entertain the suit. It was further argued that the Court below ought to have granted the application as jurisdiction was a strong point in that application as it was never too late to appeal against a judgment given without jurisdiction and as the question of jurisdiction is a constitutional issue which can be raised at any stage of a proceeding even for the first time in the Supreme Court. Of course, that is the law. But is it true that there was an issue of jurisdiction raised before the Court below The proposed grounds of appeal before the Court below, speak eloquently and in no uncertain terms in answer to the above question:

‘GROUNDS OF APPEAL:<br< p=””

</br<

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GROUND ONE

The learned trial judge erred in law, he held that “As I stated earlier in this ruling, fair hearing is for the protection of all parties to a case, the plaintiff and defendant alike… The conduct of the defendants/applicants from the circumstances and facts of this case has been such that they are not worthy of the sympathetic consideration by the Court or the Court exercising its discretion in their favour.

PARTICULARS OF ERROR IN LAW

1) The 2nd – 20th defendants/applicants/appellants and their counsel E. O. Ekpoko, Esq., were last in Court on the day the said E. O. Ekpoko withdraw from the matter.

2) The Defendants/applicants/appellants did not attend Court thereafter because the plaintiff/respondent/respondent told them that he will withdraw the matter from Court.

3) The defendants/applicants/appellants were not notified of the proceedings that took place in the trial Court on 13th day of April, 2006 when the plaintiff/respondent/respondent testified in-chief .

4) At the end of the plaintiff/respondent/respondent’s evidence in-chief on 13th April, 2006, the 2nd – 20th defendants/applicants/appellants were not given the

64

opportunity to cross examine and/or defend the matter despite the fact that they filed a Statement of Defence dated 17th May, 2004 therein.

5) On 13th day of April, 2006 at the close of the plaintiff/respondent/respondent case, the matter was adjourned to 2nd May, 2006 for Address by the plaintiff’s counsel Mr. Patrick Oganwu.

6) Despite particulars 1 to 5 supra, the trial Court in the absence of the 2nd – 20th Defendants/Applicants/Appellants delivered judgment/decision/order against the said appellants on 5th day of May, 2006.

7) Consequently, the whole proceedings including the judgment/order made by the trial Court on 5th day of May, 2006 was in violent breach of the principles and tenets of fair hearing and was null and void and of no efficacy.

8) The error in particulars 1, 2, 3, 4, 5, 6, and 7 supra occasioned a gigantic denial of fair hearing.

GROUND TWO

The learned trial Court erred in law in failing to observe that it was impossible in the peculiar circumstances of this case to have refused the application to set aside the judgment of the trial Court dated 5th day of May, 2006 vide an application filed by the 2nd – 20th Defendants/Applicants

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/Appellants to set aside same.

PARTICULARS OF ERRORS OF LAW

1) Repeat, adopt and rely on particulars of error in support of ground 1 supra.

2) The trial Court delivered its judgment on 5th May, 2006 in absence of the 2nd – 20th Defendants/Applicants/Appellants without ordering hearing notice of the judgment to be issued and served on them and rendering the judgment null and void.

3) Consequently the 2nd 20th defendants/applicants/appellants were denied their fundamental right of fair hearing, guaranteed every citizen by the 1999 Constitution.

GROUND THREE

The Ruling/Order/Decision is against the weight of evidence.

FURTHER AND ADDITIONAL grounds of appeal will be filed on receipt of the record of appeal.”

The complaints on the proposed grounds of appeal before the Court below, as they appear to me, have nothing to do with jurisdiction of the trial Court. They were mainly premised on lack of fair hearing. Although a constitutional issue, lack of fair hearing in a proceeding of a Court is not same with issue of jurisdiction. Jurisdiction of a Court or Tribunal and lack of fair

66

of fair hearing or trial by a Court or Tribunal, to me, are two different and independent issues, although each may lead to nullity of a decision taken by a Court or Tribunal which is in contravention of any of the two issues. Thus, issue of jurisdiction as raised by the learned counsel for the applicants is nowhere to be found both in the Court below and in this Court. The two fundamental requirements for the grant of this application still remain to be satisfied conjunctively, i.e. good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard. I already have made a finding that there are no substantial reasons to explain away the delay.

It is my finding, equally, with the proposed grounds of appeal that they do not appear to me to provide the required arguable grounds of appeal which prima facie give good cause why the appeal should be heard.

It is the trite position of the law that for an application of this nature to be granted, the two conditions or requirements of the law as espoused above i.e. good and substantial reasons which explain away the delay and arguable grounds of appeal which prima facie

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give good cause why the appeal should be heard must co-exist. There is a plethora of decided authorities among which are: Holman Bros Nig. Ltd. v. Kigo (Nig.) Ltd. (1980) 1 – 11 SC 43; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 70; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156; In Re- Adewumi (1988) 3 NWLR (Pt.83) 483; Iroegbu v. Okwordu (1990) 6 NWLR (pt.159) 643; Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (pt.206) 651; Corporation and Commerce Bank v. Ogwuru (1993) 3 NWLR (Pt 284) 630; Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401; E. F. P. Co. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 2’16; Braithwaite v. Dalhatu (2016) 13 NWLR (Pt.1528) 32; just to mention a few.

Again, it was further argued by the learned counsel for the respondent that:

“The proposed grounds of appeal it thus goes without saying that one cannot eat one’s cake and have it again. Where the fruits of a judgment have been enjoyed by a successful party, it will be unreasonable and unconscionable for that parties to seek to lodge any complaint against the judgment as he deemed to have been satisfied with the result of that

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judgment and may, thus, have no recondite grounds of appeal which prima facie was good cause for his appeal to be heard.”

In the final analysis, I find no merit in this appeal, I refuse all the reliefs asked by the applicants and the appeal is hereby dismissed. Applicants are to pay respondent N500.000.00 (Five Hundred Thousand Naira) costs.


SC.113/2013(R)

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