AKANNI & ORS v. AADE INDUSTRIAL. & INVESTMENT CO. LTD & ORS (2020)

AKANNI & ORS v. AADE INDUSTRIAL. & INVESTMENT CO. LTD & ORS

(2020)LCN/14099(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 19, 2020

CA/L/01/2018(R)

Before Our Lordships:

Tijjani Abubakar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

MRS. JENNIFER AKANNI 2. MRS. DOROTHY IKPEN DUPE 3. MRS. AUGUSTA OBIAGELI IGWEMA 4. ACP. BOSEDE DAWOIDU (MRS) 5. MOHAMMED ATTA ANUSI APPELANT(S)

And

AADE INDUSTRIAL AND INVESTMENT COMPANY LTD 2. GREENWOOD RESOURCES AND REALITY LIMITED 3. HON. MINISTER OF LANDS, HOUSING & URBAN DEVELOPMENT 4. IMPLEMENTATION COMMITTEE OF THE WHITE PAPER ON COMMISSION OF INQUIRY IN TO ALIENATION OF FEDERAL GOVERNMENT LANDED PROPERTIES 5. FEDERAL LANDS REGISTRY RESPONDENT(S)

RATIO

APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL

A Court will not grant a prayer for extension of time if the Applicant does not state good and substantial reasons that explain the delay in filing the appeal. While the Applicant is not required to account for each second, minute, hour, day, week, month and year of the delay, he will be required to generally state reasons for the delay covering the period. See Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC); Olatubosun vs. Texaco (Nig) Ltd Plc & Anor (2012) LPELR-7805 (SC).
The Applicant is also required to show in the affidavit that it is not taking the court on a wild goose chase. The Applicant must show that there are triable issues in the appeal. To satisfy this condition, the Applicant must file a proposed notice of appeal. The court will then look at the proposed grounds of appeal, without deciding it on the merit but must be clear and convinced that there is prima facie case for trial in the appeal if the leave is granted. See A.G. Federation vs. A.I.C. Ltd (1995) 2 NWLR (Pt. 378) 388; Unipetrol (Nig) vs. Bukar (1994) 5 NWLR (Pt. 344) 360.
The Applicants in this appeal must satisfy these two conditions before this Court can exercise discretion in their favour. This is the clear, settled, unequivocal and trite position of the law. A little excursion into the case law will not be out of place in this regard. In Agbaso vs. Iwunze & Ors (2019) LPELR-48906 (SC), the Apex Court per Peter-Odili, JSC at page 23 held:
“This Court has power to extend the time within which to seek leave to appeal but the indulgence is not made as of course as there are certain conditions that must be in place for the discretion of the Court to be exercised in favour of the application.
There are firstly the existence of good and substantial reasons for failure to appeal within the prescribed period, and secondly the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. See Adelekan v Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 47; Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157; Ibodo v Enarofia (1980) 5-7 SC 42; Holman Bros (Nig.) Ltd v Kigo (Nig) 8-11 SC 43; C.B.N. v Ahmed (2001) 11 NWLR (Pt.724) 369 at 393.”
Similarly, the Supreme Court in Jesso Maritime Resources Ltd vs. M/T Mother Benedicta & Anor ELC (2019) 3193 SC 1 driving home the same point held as follows:
“With the statutory provisions, it needs no saying or for second guessing that an application for leave to appeal can only be successful where the applicant can establish that the delay in bringing the application is neither willful nor inordinate. That is to say thus:-
(a) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed;
(b) that there are grounds which prima facie show good cause why the appeal should be heard. These two conditions must be satisfied before the Court will exercise its discretion as to the grant of any application for extension of time or leave to appeal”. PER TOBI, J.C.A.

THE IMPORTANCE SEEKING LEAVE TO APPEAL

“In granting an application for an extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, if the ground of appeal complains of lack of jurisdiction and it appears so, the Court would no longer inquire into the reasons for the delay.”
Similarly, the Supreme Court in Ngere & Anor vs. Okuruket & Ors (2017) 5 NWLR (Pt. 1559) 440; (2014) LPELR-22883 (SC) per Rhodes-Vivors, JSC at pages 23-25 held: “I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting as he likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.
A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above, the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Court’s discretion. E.g. pardonable inadvertence, mistake or negligence of counsel. See Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR (Pt. 309) p. 27; FHA v. Kalejaiye 2010 12 SC (Pt. iii) p. 1; Ibodo v. Enarofia 1980 5-7 SC p. 42; Kotoye v. Saraki 1995 5 NWLR (Pt. 395) p. 256; Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. iii) p. 75; Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p. 467.” PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgement): Before this Court is a motion filed 1/3/2019 by the Appellant/Applicant seeking leave to appeal and other sundry reliefs which in law are called the trinity prayers. The motion is supported by a 43 paragraphs affidavit. The motion was filed by L.A. Idu Esq. In its motion, the Appellants/Applicants are seeking the following prayers:
1. An order for extension of time to seek leave to appeal against the proceedings and decision of Hon. Justice M.B. Idris of Federal High Court Lagos of the 21st day of December, 2017 which denied the applicants the rights of fair hearing on the consent judgment entered between the respondents alone and the Bench Ruling of the 16th day of November, 2017 which overruled the Applicants motion challenging the Respondents conducts regarding the way, manner and procedure adopted in negotiating between themselves and arriving at an agreement to the exclusion of the applicants but the lower Court dismissed the application on the basis of same being framed not as an interlocutory relief and there by neglected to determine the merits of the complaint of the

applicants.
2. An order granting leave to the applicants to appeal against the proceeding of Hon. Justice M.B. Idris of the Federal High Court Lagos entering consent judgment on the 21st day of December, 2017 between the 1st and 2nd Respondents on the one (sic) and the 3rd, 4th and 5th Respondents on the other hand to the exclusion of the Applicants made parties to the suit by the lower Court and also leave to appeal against the lower Court’s Bench Ruling of the 16th day of November, 2017.
3. An order granting extension of time within which to appeal against the proceedings and decisions of Hon. Justice M.B. Idris of the Federal High Court Lagos of the 21st day of December, 2017 and also extension of time to appeal against the lower Court Bench Ruling of the 16th day of November, 2017.
4. An order deeming the Notice of Appeal filed in the lower Court and attached herewith as an Exhibit as properly filed and served and deeming the Records of Proceedings of the lower Court as having been properly transmitted and entered in this Court.

The 1st and 2nd Respondents filed a counter-affidavit of 42 paragraphs on 2/4/2019. The 3rd – 5th

Respondents did not file any counter-affidavit. Learned counsel for the Appellants/Applicants raised a single issue for determination while moving the motion thus:
“Whether this is not an appropriate instance to exercise discretion to grant leave to appeal.”

On the lone issue for determination, it is counsel’s submission relying on Olatunbosun vs. Texaco (Nig.) Plc (2018) 14 NWLR (Pt. 1319) 200 that in an application for the enlargement of time, the Applicants must take some procedural steps to succeed and all that the Applicants are required to do is to establish good and substantial or exceptional reasons to explain the cause of the delay and that all the Court is required to do is to exercise its judicial discretion according to common sense and justice in the matter. It is the further submission of learned counsel that the Appellants/Applicants have set out facts and circumstances explaining the delay which made it impossible, impracticable and an exceptional situation in the lower Court as set out in paragraphs 30, 31, 32, 33, 34, 35, 36 and 37 of the supporting affidavit. He relied on Okafor vs. Idigo (1987) N.S.C.C 360.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Finally, it is the submission of counsel that as it relates to an objection of this kind, the decision in Mangraht vs. Oduba (2004) 4 NWLR (Pt. 863) 279 is instructive to the end that it is improper and premature for a party to file a notice of preliminary objection to an application seeking leave or extension of time to appeal. Learned counsel, therefore, urged this court to exercise its discretion in favour of the Appellants/Applicants by granting this application in the interest of justice.

The counsel that signed the written address of the 1st and 2nd Respondents is Adeniyi Adegbonmire SAN. In opposing the Appellants/Applicants motion, 1st and 2nd Respondents also raised a sole issue for determination by this Court thus:
“Whether the Applicants are deserving of the order sought vide their application?”

It is the contention of learned silk for the 1st and 2nd Respondents that in determining an application for leave to appeal a decision, to which the Applicants were not originally a party to, the Applicants must show that (i) he has an interest in the matter; (ii) the decision appealed against is prejudicial to its interest; and

(iii) he has suffered legal grievances as a result of the decision. He cited Nwaogu vs. Atuma (2013) All FWLR (Pt. 669) 1022 @ 1034. It is the submission of learned Silk that for the Court to enlarge time to appeal an interlocutory decision, the Applicants must show (i) good and substantial reasons for failure to appeal within the prescribed period, and (ii) the grounds of appeal, prima facie, show good cause why the appeal should be heard. He referred this Court to Order 9 Rule 2 of the Court of Appeal Rules 2016 and Seriki vs. Adepegba & Anor (2018) LPELR-45007 (CA) and Federal House Authority vs. Abosede (1998) 2 NWLR (Pt. 537) 177. It is counsel’s further submission that a cursory look at the affidavit of the Appellants/Applicants filed in support of their application shows that the Applicants have failed to satisfy the legal requirements for the grant of the reliefs they seek vide the application and thus urged this Court to dismiss the application.

It is the argument of learned senior counsel that the gravamen of the suit before the lower Court and the consent judgment borders on the proprietary of the 3rd Respondent’s administrative

act which purportedly revoked the proprietary interests of the 1st and 2nd Respondents. It is the further submission of counsel that at the time of the purported revocation and subsequent to the purported revocation, the Applicants were neither in occupation nor the holder of the legal title to the property; thus making the Applicant’s interests on the property non-existent. He contended that the Applicants have failed to show how the consent judgment affect their clearly non-existent interest or the prejudice they have suffered as a result of the consent judgment and that at best, the Applicants can only be regarded as meddlesome interlopers and have failed to fulfill the conditions for the grant of leave to appeal the consent judgment as interested parties.

It is the contention of counsel that an application for extension of time is not granted as a matter of course, but upon facts showing satisfactory and suitable reasons. He cited Ikenta Best (Nig.) Ltd vs. AG Rivers State (2008)) 6 NWLR (Pt. 708) 672 @ 642-643. He submitted that the reason stated by the Applicants is not an acceptable or useful reason to form a basis for this Honourable Court

to grant the application. It is the further submission of learned silk that the Appellants’ grounds of appeal shows beyond peradventure that the grounds of appeal are not good grounds of appeal as they are neither substantial nor arguable. The grounds of appeal attempt to attack the rights of the Respondents to amicably settle their dispute, a position which has since been settled by this honourable Court and the Apex Court. He relied on Habib Bank Nigeria Plc vs. Lodigiani Nigeria Limited (2010) LPELR-4228 (CA); Abey vs. Alex (1999) 14 NWLR (Pt. 637) 148 and CBN vs. Beckiti Const. Ltd (1998) 6 NWLR (Pt. 553) 23.

It is the final submission of counsel that the resolution of the dispute had no bearing on the rights of the Applicants. This is more so because the 1st and 2nd Respondents have no claim against the Applicants. It is the further submission of counsel that the contention of the Applicants is chiefly on the amicable resolve of the dispute between the 1st and 2nd Respondents and the 3rd – 5th Respondents, with the aim of compelling the Respondents to continue litigation between themselves. Learned silk contends further that this is

clearly in contravention of the right of disputing parties to amicably resolve their dispute without the meddlesomeness of a stranger. Learned silk urged this Court on the strength of the above to dismiss the application.

To address the real issue before this Court in this motion it will not be out of place to look at the facts in some details. The Applicants are civil servants occupying the subject property at No. 40 Glover Road, Ikoyi. By the policy of the Federal Government; owners of the property, the said property is to be leased. The Applicants as occupants by the guidelines are to have the first right of refusal. On 21/11/2005, the subject property was offered to them for sale of the lease. On the same date, the property was also offered to the 1st Respondent. The 1st Respondent subsequently, sold same to the 2nd Respondent. Following the petition by the Applicants, the offer made to the 1st Respondent by the 4th Respondent was withdrawn by a letter dated 19/12/2011. This was also communicated to the Applicants and their interest on the property was reinstated. This was on 27/5/15. Following this development, the 1st & 2nd Respondents

instituted an action against the 3rd – 5th Respondent seeking relief that the revocation order be discharged. This suit was instituted on 3/8/15 in the Federal High Court, Lagos Division. The suit was registered as Suit No: FHC/L/CS/1195/2015. The Applicants applied to join the suit as parties. This was granted by the court on 8/4/16. Consequent to this, the Applicants became 4th – 8th Defendants. They filed a statement of defence to the suit and subsequently an amended statement of defence on 11/5/16. The Applicants did not file any counterclaim against the 1st & 2nd Respondents as Claimants in the lower Court. The hearing started and despite the objection of the Applicants (then 4th – 8th Respondents) to the terms of settlement over the matter between the 1st & 2nd Respondents on the one side and the 3rd – 5th Respondents on the other side. The terms of settlement was filed on 13/7/2017. The lower Court presided over by M.B. Idris J (as he then was) entered the terms of settlement as the judgment of the Court on 21/12/17. On 22/12/17, a day after the judgment, the Applicant filed a motion for leave to appeal against the judgment. The lower Court did

not give a date or hear the application for leave to appeal against the consent judgment until the time within which the appeal should be filed expired. Consequent upon this, the Applicants are filing this application seeking for the trinity prayers on 1/3/19. This by simplistic mathematic calculation is 2 years, 2 months and 8 days from the date the judgment was delivered. From the affidavit evidence before this Court, the appeal should have been filed within 14 days of the judgment which should have been before 4/1/18. In the circumstance, the time expired after that date but the expiration was not the fault of the Applicants as the motion was filed on time but no date was given within the time frame. The challenge, however, is that the Applicants should have approached this Court since then but after the expiration, it took the Applicants about 1 year to file this application. All this is necessary to appreciate the sole issue for determination as raised by the parties, though the issue raised by both parties is materially the same but in a different language. I will however, adopt the issue raised by the Respondents in their brief. I will reproduce it for

ease of reference:
“Whether the Applicants are deserving of the order sought vide their application.”

The Applicants are challenging the consent judgment delivered on 21/12/17. The Applicant has run out of time hence this application filed on 1/3/19. What the Applicants need to establish to succeed in this application is determined by the prayers sought in the application. I have reproduced the prayer so I need not do so again. The Applicants are seeking leave to appeal against the judgment of the lower Court. In considering this application I must caution myself so that I do not fall for the temptation of considering the main case on its merit. This is a temptation I will not fall for. In an application of this sort, what the Applicants need to prove is established beyond any dispute. An Applicant seeking for extension of time to appeal must satisfy certain conditions. It is not an application that an Applicant should take for granted and as a done deal. It is not like picking an item in the supermarket you have paid for. The power to grant such prayer is discretionary and like all discretionary powers of a Court, it must be exercised

judicially and judiciously. See Ubale vs. Dadiya (2008) 15 NWLR (Pt. III) 489; INEC vs. Atuma & Ors (2013) SC (Pt. V) 95.
A Court will not grant a prayer for extension of time if the Applicant does not state good and substantial reasons that explain the delay in filing the appeal. While the Applicant is not required to account for each second, minute, hour, day, week, month and year of the delay, he will be required to generally state reasons for the delay covering the period. See Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC); Olatubosun vs. Texaco (Nig) Ltd Plc & Anor (2012) LPELR-7805 (SC).
The Applicant is also required to show in the affidavit that it is not taking the court on a wild goose chase. The Applicant must show that there are triable issues in the appeal. To satisfy this condition, the Applicant must file a proposed notice of appeal. The court will then look at the proposed grounds of appeal, without deciding it on the merit but must be clear and convinced that there is prima facie case for trial in the appeal if the leave is granted. See A.G. Federation vs. A.I.C. Ltd (1995) 2 NWLR (Pt.

378) 388; Unipetrol (Nig) vs. Bukar (1994) 5 NWLR (Pt. 344) 360.
The Applicants in this appeal must satisfy these two conditions before this Court can exercise discretion in their favour. This is the clear, settled, unequivocal and trite position of the law. A little excursion into the case law will not be out of place in this regard. In Agbaso vs. Iwunze & Ors (2019) LPELR-48906 (SC), the Apex Court per Peter-Odili, JSC at page 23 held:
“This Court has power to extend the time within which to seek leave to appeal but the indulgence is not made as of course as there are certain conditions that must be in place for the discretion of the Court to be exercised in favour of the application.
There are firstly the existence of good and substantial reasons for failure to appeal within the prescribed period, and secondly the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. See Adelekan v Ecu-Line NV (2006) 12 NWLR (Pt.993) 33 at 47; Obikoya v Wema Bank Ltd (1989) 1 NWLR (Pt.96) 157; Ibodo v Enarofia (1980) 5-7 SC 42; Holman Bros (Nig.) Ltd v Kigo (Nig) 8-11 SC 43; C.B.N. v Ahmed (2001) 11 NWLR

(Pt.724) 369 at 393.”
Similarly, the Supreme Court in Jesso Maritime Resources Ltd vs. M/T Mother Benedicta & Anor ELC (2019) 3193 SC 1 driving home the same point held as follows:
“With the statutory provisions, it needs no saying or for second guessing that an application for leave to appeal can only be successful where the applicant can establish that the delay in bringing the application is neither willful nor inordinate. That is to say thus:-
(a) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed;
(b) that there are grounds which prima facie show good cause why the appeal should be heard. These two conditions must be satisfied before the Court will exercise its discretion as to the grant of any application for extension of time or leave to appeal”
The Court went on in the same case to hold:
“Again to be said is that there are two legs to the conditions to be fulfilled by an applicant for extension of time for the application to succeed, the first being that there is deposition in the affidavit in support showing good and substantial reasons

for the delay in filing the appeal and which reasons are convincing and not ousted by a countering deposition from the other side. The second leg is that the grounds of appeal proposed are on face value display good cause why the appeal should be heard. These two legs or conditions are conjunctively applying(sic) and must co-exist before the application would be adjudged successful. That cannot be said to be the case in this instance where applicants counsel failed to show due diligence and interest in filing an appeal after being instructed by the applicant nine (9) months after the said instruction.”
Still, on this point, one more case will not harm anyone. It covers all the point raised above. It was earlier in time. This is the case of Akinpelu vs. Adegbore & Ors (2008) LPELR- 354 (SC), the Apex Court at pages 23-24 held:
“The granting of an application for enlargement or extension of time with which to appeal is at the discretion of the Court, which must be exercised judicially and judiciously. See Akinyede v. The Appraiser (1971) 1 All NLR 162; Alagbe v. Abimbola (1978) 2 SC 39; Obikoya v. Wema Bank Limited (1989) 1 NWLR (Pt.

96) 157. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the Court. The Court will take into consideration the following factors:
(a) An applicant, in the matter, has a right of appeal as of right and therefore does not require leave of Court.
(b) The affidavit in support of the application must give satisfactory explanation for the delay. In other words, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. In other words, the affidavit must present some materials before the Court to enable it exercise its discretion.
(c) The grounds of appeal must show good cause why the appeal should be heard. Once the grounds of appeal prima facie show good cause why the appeal should be heard, an application will be granted. The Court cannot at this stage consider whether the appeal will succeed. That has to come at the hearing of the appeal.
(d) The justice of the case demands that the appeal should be heard. See Ibodo v. Enarofia, supra; Ogbu v. Urum (1981) 4 SC 1; Williams v. Hope Rising (1982) 1-2 SC 145; Nwachukwu v. The State

(1986) 2 NWLR (Pt. 25) 165; Mobil Oil (Nig) Limited v. Chief Agadaigho (1988) 2 NWLR (Pt. 77) 383 and Shittu v. Osibanjo (1988) 3 NWLR (Pt. 83) 483.
An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupebi v. Saibu (1982) 7 SC 104. A special circumstances is of a particular kind, which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of counsel qualifies as a special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Salawu (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143.”
I can go on and on but I rather stop here. The question now is whether the Applicants have satisfied these two conditions to warrant this Court

granting this application. The only place to look for this is the 42 pages affidavit in support deposed to by Augusta Obiageli Igwema on 1/3/18. Before I address this issue specifically, it is important I correct the impression created by the learned SAN which is found in his submission to the effect that the Applicants are filing this application to appeal as an interested party. This is not correct as it does not reflect the position of the facts before this Court. The Applicants are not desiring to appeal as an interested party but rather the Applicants are parties in the action at the lower Court. They were joined as parties on 8/4/16 and even filed a Statement of Defence. As at when the consent judgment was entered on 21/12/17, the Applicants were parties in the suit. The Applicants’ case is that the consent judgment ought not to have been entered without their consent as they were parties to the suit. The Respondents case is that since there was no claim against them and no counterclaim by the Applicants, there is no need for their consent. This is not the stage to determine whether the judgment is right. I will therefore not go there. The point I

needed to make here is that the Applicants are not seeking to appeal as interested parties but they are seeking to appeal as parties in the lower Court.
Having settled that, it is now appropriate to find out whether the Applicants have satisfied the two conditions. I will start with the condition of the proposed grounds of appeal showing good cause as to why the appeal should be heard. In other words, did the proposed grounds of appeal show prima facie case or disclosed triable issues? The main thrust of the ground of appeal is the infringement of the Applicants’ right to a fair hearing, jurisdiction and error in law in overruling the objection not to take the address before the consent judgment was entered. For completeness I will reproduce the proposed grounds of appeal:
Ground 1:
The Federal High Court erred in law when it adopted a procedure on the 21st day of December 2017 which has resulted in the infringement of and will lead to further infringement of the Appellants’ fundamental right to fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999.
Ground 2:
The Federal High

Court erred in law when it overruled the Appellants’ objection to the adoption of the terms of settlement by the Respondents.
Ground 3:
The Federal High Court erred in law when it entered judgment in Suit No: FHC/L/CS/1195/2015 before the Appellants counter claim on the same issues could be heard.
Ground 4:
The Federal High Court erred in law when it proceeded to make the terms of settlement adopted by the Respondents the Judgment of the lower Court notwithstanding that the Respondents agreed between themselves that the 3rd Respondent should rescind of the revocation of the 1st Respondent’s purported rights over 44, Glover Road, Ikoyi, Lagos.
Ground 5:
The Federal High Court erred in law when it assumed jurisdiction over Suit No: FHC/L/CS/1195/2015 and proceeded to enter judgment for the Respondents.
The Applicants in my view have stated very serious issues for trial. The issues of fair hearing and jurisdiction are the bedrock of any judicial process as any proceeding or judgment no matter how brilliant will amount to nullity if the Court lacked jurisdiction or was conducted without fair hearing. See Arije vs. Arije & Ors

(2018) LPELR-44193 (SC); Bamaiyi vs. The State & Ors NSCQLR Vol. 6 (2001) 156; Dangana vs. Usman (2013) 6 NWLR (Pt. 1349) 50; Ezenwaji vs. UNN (2011) 18 NWLR (Pt. 1598) 485.
I am not in doubt whatsoever that the Applicants have discharged the condition in relation to the proposed ground of appeal. The other condition is important also. Indeed both conditions are mutually inclusive and not exclusive. In other words, both conditions must be satisfied before a Court can grant the motion as sought for. Is there enough evidence to show good and substantial ground for the delay? The Applicants seem to give the reason for the delay in paragraphs 31-34 of the affidavit in support. The summary of the paragraphs are that they file timeously the application for leave to appeal at the lower Court but for no fault of theirs, the lower Court did not grant leave until time expired on 4/1/18 as the case was adjourned to 20/2/18. This means since the Court did not grant leave and gave date to hear the application after the expiration of time, the Applicants could be excused for not filing the application till the 4/1/18 or 28/2/18. The Applicants have

a duty to explain why the delay from 28/2/18 to when the application was filed on 1/3/19. This is a period of over 1 year. This period must be explained in the affidavit evidence. I cannot seem to see any explanation for the delay for this period in the affidavit. There is the only explanation for the period between 21/12/17 and 28/2/18. Aside from that, there is no explanation for why this application was not filed from the period of 28/2/18 to 1/3/19. This implies that the Applicants have failed to satisfy this Court as to showing a good and substantial reason for the delay in filing this application between 28/2/18 and 1/3/19. This ordinarily will make this application to fail.
There is however one possible game-changer in this application. The only ground upon which the Applicant will be off the hook on the issue of inability to explain the over 1 year period in not filing this application is when the proposed grounds of application deals with jurisdiction. The law is settled to the effect that if the ground of appeal borders on the jurisdiction, the Court will no longer concern itself with the inability of the Applicant to explain the time-lapse in

filing the application. I must state emphatically in line with the law that once the appeal deals with the issue of jurisdiction, it does not matter whether the above-stated conditions have been satisfied. In other words, once the proposed grounds of appeal deals with the issue of jurisdiction, it does not matter whether the Applicants could explain the delay. The issue of jurisdiction supersedes and swallows the other condition. Once the grounds of appeal deal with jurisdiction, a Court will not concern itself with whether the Applicant was able to explain good and substantial reasons for the delay. See Jimoh vs. Minister FCT (2019)5 NWLR (Pt. 1664) 45 the Apex Court held:
“In granting an application for an extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, if the ground of appeal complains of lack of jurisdiction and it appears so, the Court would no longer inquire into the reasons for the delay.”
Similarly, the Supreme Court in Ngere & Anor vs. Okuruket & Ors (2017) 5 NWLR (Pt. 1559) 440; (2014) LPELR-22883 (SC) per Rhodes-Vivors, JSC at pages 23-25 held:

“I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on –
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting

as he likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.
A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court. On (a) above, the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Court’s discretion. E.g. pardonable inadvertence, mistake or negligence of counsel. See Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR (Pt. 309) p. 27; FHA v. Kalejaiye 2010 12 SC (Pt. iii) p. 1; Ibodo v. Enarofia 1980 5-7 SC p. 42; Kotoye v. Saraki 1995 5 NWLR (Pt. 395) p. 256; Akinpelu v. Adegbore & 3 Ors 2008 4-5 SC (Pt. iii) p. 75; Nwora v. Nwabueze 2011 15 NWLR (Pt. 1271) p. 467.”
The Applicants in Ground 5 of the grounds of appeal states as follows:
“The Federal High Court erred in law when it assumed jurisdiction over suit No:

FHC/L/CS/1195/2015 and proceeded to enter judgment for the Respondents.”
This ground is obviously on jurisdiction and therefore as the cases cited above decided by the Supreme Court, the fact that the Applicants could not explain the over 1 year in not filing this application does not matter. This is a game-changer. Though the Applicants could not explain the over 1 year the application was not filed, the fact that the ground of appeal is on the subject of jurisdiction, the application for leave will be granted. In the circumstance, prayers 1, 2 and 3 are granted. The Applicants are to file their notice of appeal within 21 days from the order of this court.
I award N200,000 (Two Hundred Thousand Naira) in favour of the Applicant against the 1st & 2nd Respondents.

TIJJANI ABUBAKAR, J.C.A.: I read the lead Ruling just rendered by my learned brother EBIOWEI TOBI JCA. I endorse the reasoning and conclusion. It is adopted as mine.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in its draft form, the leading Ruling delivered by my learned brother, EBIOWEI TOBI, JCA

wherein he acceded to the Applicants’ Motion on Notice filed on 1/3/2019.

I agree with the analysis of the facts and materials upon which his decision was eventually based, and by the provision of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016, the power to grant such application for enlargement of time within which to appeal or seek leave to appeal is at the Court’s discretion. By the extant decisions of this Court and the Supreme Court, it’s a discretionary power which will be exercised judicially and judiciously, and in which the Court is required to take cognizance of the peculiar facts and circumstances of each case (See Supreme Court’s decision in NWANEZE V. IDRIS (1993)3 NWLR (pt. 279) S.C.5) as no two cases, even where their facts are similar, will not likely present similar and peculiar circumstances.
In view of the fact that the Appellants had filed a similar application for leave before the lower Court which whether deliberately or inadvertently was never listed for hearing until the period within which the application is to be heard expired, had in my view, presented a peculiar circumstance which when assessed against the grounds

of appeal which prima facie challenged the jurisdiction of the lower Court, would be a strong factor that will sway the disposition of this Court in granting the Applicants’ Motion on Notice, lest, the consent judgment which was delivered under the haze of lack of jurisdiction may invariably amount to allowing the said judgement to stand without an opportunity for its review by the appellate Courts. That will in my view, lead to a probable perpetuation of injustice which really will be contrary to the spirit and letters of the provision of Section 242(1) of the Constitution, 1999 as amended. The discretion to overlook and perhaps down play the lack of good reason for the delay in bringing the instant application is one that this Court, as my learned brother had done, will exercise as the 1st and 2nd Respondents, who have been compensated by way of costs, have not shown what irreversible loss or damage they would suffer by the opportunity to have the consent judgment they had obtained to be reviewed by this Court in the exercise of its appellate jurisdiction on the strength of the grounds of appeal “which prima facie show good cause why the appeal should be heard.”

I too allow the application and I abide with the consequential order made as to costs in the leading Ruling of my learned brother, EBIOWEI TOBI, JCA.

Appearances:

A. Idu Esq., with him C. Onyekegbe and O.N. Madu Esq., For Appellant(s)

Iyayi Esq., with him A. Ikembi Esq., for 1st and 2nd Respondents. For Respondent(s)