COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD (2019)

COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD VS HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR

(2019) LCN/4632(SC)

In the Supreme Court of Nigeria

Thursday, January 31, 2019


Case Number: SC. 239/2011

 

JUSTICES:

KUMAI BAYANG AKAAHS

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI PLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

 

APPELLANTS

COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD

 

RESPONDENTS

1. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT2. ATTORNEY GENERAL OF THE FEDERATION

Rule of Estoppel- Estoppel by Conduct

Section 169 of the Evidence Act is very clear. It provides as follows: “When one person has either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.” This is known as the rule of estoppel by conduct. In Nsirim Vs Nsirim (2002) 3 NWLR (Pt. 7551 697 @714 – 715 H – A. this court per Iguh, JSC explained the rule thus: “where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter, a different state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise known as estoppel by matter in pais has been stated.

 

Duties of Appellant- Duty of a party seeking enlargement of time within which to appeal

a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: Ratnam v. Cumarasamy (1964) 3 ALL E.R. 933 at 935; Bank Of Baroda v. Mercantle Bank (1987) 6 S.C 341 at 350. Even where the application is not opposed the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: Nwabuba v. Enemuo (1988) 5 S.C.NJ. 154”.

 

Appeal- Conditions that warrant the grant of an Application for Extension of Time for Leave of Appeal

“This Court, as can be seen from the In re: Adewunmi & Ors. (1988) 3 N.W.LR. (Pt. 83) 483; University Of Lagos v. Olaniyan (supra); (Pt. 284) 630; Williams v. Mokwe (supra), has consistently maintained that the two conditions, under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 or its equivalent, which must be fulfilled to warrant the grant of an application for extension of time for leave to appeal are good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie good cause why the appeal should be heard. The two conditions are statutory and conjunctive, and they are intended to be given effect to by the Courts interpreting them. The Judge’s duty being merely to interpret the statute, and not to make a statute; the Judge when interpreting a statutory provision, as Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, is only to bring out the natural meaning of words in the statutory provision where the words are clear and unambigous: Abayomi Babatunde v. Pan Atlantic Shipping & Transport Agencies Ltd. & Ors. (2007) ALL F.W.LR. (Pt. 372) 1721 at 1752.

 

Appeal- Can a party waive its Right of Appeal?

“I agree with the Appellant that the Respondents could not waive their right of appeal and still want or expect to exercise it. They cannot have both in the circumstances. In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other. HRH Umeanadu v. A.G. Anambra State (2008) 34 N.S.C.Q.R. 1 at 24”.

 

Right of Appeal- Constitutional Nature of Right of Appeal

“A reiteration of the position on this matter of appeal is that the constitutional right to appeal being personal is for the sole benefit of the appellant and no statute which forbids or controls how the respondents may use their rights and the effect of that is that the right is capable of being waived or abandoned or released. Therefore, where a party has decided not to appeal a judgment given against him and he has further decided to communicate to the opposing party with the inaction as far as initiating an appellate process and to the extent that the opportunity and time frame accorded him by law had expired the circumstances may present such a facet that it could be taken that the right to appeal is lost for all time. See Ariori v Elemo (1983) NSCC Vol. 14 page 8.

Doctrine of Equity- He that comes to Equity must come with clean hands.

“Equity, generally abhors subterfuge, deception and some other unconscienable conduct. Equity acts in personam. That is why it is stated that he who comes to equity must come with clean hands. My learned brother, C. C. Nweze, JCA (as he then was) emphasised this in Standard Chartered Bank Nigeria Ltd v. Dr. Tunji Braithwaite (2013) L.P.E.LR. 20814 (CA) in his statement – Equity like an immaculate garment, abhors the company of those who are likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since it does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt – that may be detestable and impeachable.

Authority of Counsels

This case, subtly, raises yet another issue – the general authority every Counsel has over every cause or matter he is employed or engaged to prosecute or defend. Unless his authority has been expressly limited the ordinary authority of Counsel in any matter he has been engaged includes entering into to comprise or settlement: Afegbai v. A.G. Edo State (2001) 7 S.C. (Pt. II) 1; (2001) 14 N.W.LR. (Pt. 733) 425”.

(DELIVERED BY EJEMBI EKO, JSC)
The Federal High Court (Coram: Abdullah! Mustapha, CJ) delivered its final judgment in the suit No. FHC/L/CS/368/2007on 8th June, 2009; wherein it found inter alia that:
i.That there was a contract between the Plaintiff and the 1st Defendant wherein the 1st Defendant agreed to convey to the Plaintiff 16 Hectares of land at Ikoyi, Foreshore, Ikoyi for a term of 99 years with effect from 1st January 1993 at a premium of N4,500.000.00 and annual Ground Rent of N180,000.00 and that the contract has not been superseded or overridden by the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999.
ii.The conveyance of a lesser area of land in the Deed of Lease dated 13th November, 1993 and the Deed of Rectification dated 19th April, 1999 totalling 10.47 Hectares of Land is not a discharge of the 1st Defendant’s contractual undertaking to convey 16 Hectares of Land to the Plaintiff.

iii. That the 1st Defendant is in breach of the contract for the lease of 16 Hectares of land to the Plaintiff.
The trial Court then further reinforced the findings of fact with the following orders or declarations in favour of the Plaintiff (herein the Appellant) –
1.That the Plaintiff is the person that owns the entire land comprised in the Survey Plan of M.A. FASASI dated 5th May, 1995 with number MAF/322/95/L
2.That the Plaintiff is entitled to the grant of a Statutory Right of Occupancy over (the) 16 Hectares of Land shown in Annexure CCB/2.
3.That the 1st Defendant has no interest whatsoever in the land (the) subject matter of this suit more particularly described in Annexure CCB/2 and the purported grant of leases or Certificate of Occupancy over same to the 3rd to 8th Defendants are null and void.
The 1st and 2nd Defendants (among 8 defendants) in the said suit at the trial Federal High Court were the 1. Hon. Minister of Environment, Housing and Urban Development, and
2. Attorney General of the Federation, who presently are respectively the 1st and 2nd Respondents in this appeal. They were the Applicants at the lower Court where they sought –
1. AN ORDER of – (the) Court extending the time within which – (to) seek leave – to appeal against the Judgment of the Federal High Court, Lagos Division, Coram: Mustapha, CJ (as he then was) in suit No. FHC/L/CS/368/2007 -delivered on 8th June, 2009 –

2.AN ORDER-granting leave to the Applicants to appeal against the Federal High Court Judgment.
3.AN ORDER enlarging the time within which the Applicants may appeal against the Federal High Court Judgment.
At the trial Court the office of the Attorney-General of the Federation (the 2nd Defendant/Applicant/Respondent); through Itua Eigbe, Esq., represented both the 1st & 2nd Defendants (herein the Respondents). Mr. Itua Eigbe was by then the Acting Chief State Counsel in the office of the
Attorney-General of the Federation. The Respondents herein are, no doubt, both Officers/Departments of the Federal Government of Nigeria.

On 7th July, 2009, through letter No. MJ/CIV/58/07/525, the 2nd Respondent, as Counsel to the 1st Respondent, through the said Itua Eigbe, Esq. advised the 1st Respondent (as the 1st Defendant at the trial):
It is however the considered view of this Ministry, given the overwhelming evidence in support of the Plaintiffs case that an appeal in this matter is not likely to succeed, and as such suggest negotiation with the Plaintiff as viable alternative. Moreso, the unviability of the policy file in this matter was helpful to our case.
Thereafter, Mr. Itua Eigbe of Counsel to the 1st and 2nd Defendants (Respondents herein), apparently under pressure to appeal, wrote the letter dated 14th August, 2009 to all the parties in the suit at the trial Court informing them, on behalf of the 1st and 2nd Defendants/Respondents –

– that following the said judgment, the 1st and 2nd Defendants have carefully reviewed same in line with facts which emerged at the trial and facts at its disposal bordering on the original allocation and have decided not to appeal the said judgment. The Ministry has no further interest in the matter.
In the circumstances, since the Ministry no longer has interest in the matter you are advised to meet with the Plaintiff for amicable settlement to the matter.
These two letters were specifically pleaded as exhibits in the affidavit supporting the application for extension of time within which these same 1st and 2nd Defendants, as the Applicants (now Respondents), would appeal the same judgment in the suit No. FHC/L/CS/368/2007 delivered on 8th June, 2009.

The application at the lower Court, vehemently opposed by the Appellant herein, was brought pursuant to Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 providing that –
10(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good reason cause why the appeal should be heard – –
The summary of the Appellant’s contention in this appeal is that the Respondents who had abandoned their right of appeal by consciously electing not to exercise that right to appeal cannot be heard to say that their own decision to abandon their right of appeal by electing not to appeal constitutes “good and substantial reasons for failure to appeal within the prescribed period”, as fixed by Section 24(2)(b) of the Court of Appeal Act, 2004. I agree with the Appellant that, from Paragraphs 7, 11, 12, 14, 18, 19, 20 and 21 of their Counter-Affidavit at the lower Court, they established that the Respondents herein, as the applicants at the lower Court, “had made a choice not to appeal the decision of the trial Court” delivered on 8th June, 2009 in the suit No. FHC/L/CS/368/2007. That fact is not in dispute as between the parties herein. It is clear, from the affidavit in support of their application for extension of time within which to seek leave to appeal, that the Respondents, as the applicants, admitted that fact. I will think the Respondents, in electing not to appeal the decision of the trial Court, which fact of election they communicated to the Plaintiff (herein the Appellant), made no mistake at all. The decision not to appeal was a deliberate and a conscious decision taken inter alia upon carefully reviewing the judgment “in line with facts which emerged at the trial and the facts at (their) disposal” and further upon “their considered view, – given the overwhelming evidence in support of the Plaintiffs case that an appeal in this matter is not likely to succeed.” They also took into consideration “the unviability of the policy file (sic) in this matter”. The lower Court, at pages 242 and 243 of the Record, seems to have got it wrong when it held, relying on KOTOYE v. SARAKI (1995) 58 N.W.LR. (Pt. 395) 256; (1995) 1 S.C.N.J 1 at 7, and IKENTA v. A.G. RIVERS (2008) 6 N.W.L.R. (Pt. 1084) 621, that the facts of this, particularly the deliberate decision of the Counsel for the Respondents, as the applicants, was not a conscious election not to exercise the right of appeal of the Respondents but a mere mistake of Counsel, and that “such a mistake or its consequences should not, in general, be visited on his client, who in most cases is a layman.”
Still at page 242 of the Record, the lower Court, apparently believing that it was called upon to review the decision of the 2nd Defendant/Respondent (doubling also as Counsel for the 1st Defendant/Respondent) stated, magisterially:
The 2nd Applicant (now Respondent), as a Legal Practitioner, and in fact the Chief Legal Officer of the Federation, knew fully that Public interest could be adversely affected if he failed to appeal the judgment of the lower Court within the period prescribed by law. Unfortunately, however, the 2nd Applicant was most complacent and derelict in protecting whatever interest the Government may still have had in the case. Thus, it is rather that as the Chief Law Officer of the Federation, the 2nd Applicant had been so derelict and complacent to the extent of gambling away the right of appeal thereof.
These findings clearly abnegate any contention or pretensions the Respondents may have to the principle that mistake or error of Counsel should not be visited on his client.
The Lower Court appears to think that UKWU v. BUNGE (1997) 8 N.W.LR. (Pt. 518) 527 at 542 avails it to look the other way to the provisions of Order 7 Rule 10(2) of its own Rules that requires the Applicant, seeking the indulgence of enlargement of time within which to appeal, to set forth in the supporting affidavit, “forth good and substantial reasons for failure to appeal within the prescribed period”. In UKWU v. BUNGE (supra), particularly in the statement of Ogbuagu, JSC, the point was made that if the proposed ground of appeal raises a constitutional and fundamental issue of jurisdiction which prima facie appears so it might not be necessary to inquire whether there are good and substantial reasons for not appealing within the prescribed period; and that such issue of jurisdiction raised in the proposed ground of appeal may induce the Court to take a lenient view of the delay in appealing within the prescribed period.
The Respondents, relying heavily on UKWU v. BUNGE (supra) have reasoned that they did not waive their right of appeal which is a constitutional right, and that the right that can be waived, as decided by this Court in ARIORI v. ELEMO (1983) N.S.C.C. 1, on which the Appellant rests its case, is the “right conferred solely for the benefit of the individual” and further that in this case the right of appeal vested in the State or public officials are not such right that such State or public officers can waive.

The Appellant, on the other hand, argues that the Respondents, as 1st and 2nd Defendants at the trial Court, communicated their intention not to appeal to them, and that the Respondents had expressly and in clear terms abandoned, renounced and repudiated their right of appeal. They argue therefore that the Respondents having expressly abandoned their right of appeal should not, in equity, still be allowed to seek to exercise the said right.
I agree with the Appellants that the Respondents took a deliberate and conscious decision not to appeal, and gave reasons for the decision. Their application at the lower Court was not intended to be a judicial review of that decision not to appeal, which they communicated to Appellant, as the-plaintiff, and the other defendants at the trial Court. It was not also a question of complacency or dereliction of duty. The lower Court, by the application of the Respondents, was not called upon to decide or determine whether or not the decision or election of the Respondents, in the exercise of their undoubted liberty or discretion, not to appeal, for the reasons they gave therefor, was unreasonable or not.
The Appellant, on the other hand, had put up a case of waiver and estoppel by conduct before the Lower Court to consider viz-a-viz the Respondents’ resiling from their earlier election not to appeal by their subsequent application seeking extension of time within which to seek leave, et al. Section 151 of the Evidence Act, 2004 (now Section 169 of the 2011 Evidence Act), which the Lower Court did not consider, seems to offer direct answer to this point on which issues have been joined by the parties herein. It provides-

When one person has, either by virtue of an existing Court judgment, —— or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.
The principle of estoppel by conduct is based on the public policy that says that there must be an end to litigation. Its aim is, not only to hold a party to his undertaking that he will no longer insist on either his right to appeal or the accrued right or obligation from the judgment, but also not to allow a person benefit from his prevarication. Equity, generally abhors subterfuge, deception and some other unconscionable conduct. Equity acts in personam. That is why it is stated that he who comes to equity must come with clean hands. My learned brother, C. C. Nweze, JCA (as he then was) emphasised this in STANDARD CHARTERED BANK NIGERIA LTD v. DR. TUNJI BRAITHWAITE (2013) L.P.E.LR. 20814 (CA) in his statement –
Equity like an immaculate garment, abhors the company of those who are likely to contaminate its majesty; taint its purity or dampen its allure! Above all, since it does not trade on detergents, those who approach her hallowed portals are forewarned to denude their hands of all dirt – that may be detestable and impeachable.
Section 241 of the Constitution vests in the Respondents a right of appeal from the decision of the trial Federal High Court. There is no doubt about that they had 90 days under Section 24(2) (b) of the Court of Appeal Act, 2004 to exercise that right, if they are mindful to. In the instant case, the Respondents elected not to exercise that right and had expressly let the Appellant and other parties in the suit know that they intended not to appeal and would not appeal the decision of the Federal High Court. They further expressly told all concerned that they were, from the facts of the case, satisfied with the judgment.
The Appellant submit, and I agree with them, that the legal consequence of the written statements and conduct of the Respondents communicated to the Appellants following the judgment of the trial Court is that they had relinquished and abandoned their right of appeal and had thereby relinquished same irretrievably. I do not agree with the Respondents that the right of appeal is not a personal right vested in them as parties in the suit at the trial Court. That right enures to them to exercise, and it can only be exercised within 90 days or such longer time as the Court may extend. The fact that the Respondents are public officers does not derogate the truth of the matter that as parties to the suit they, like all parties in the suit are at par and do enjoy “the equality of rights, obligations and opportunities before the law” as assured by Section 17(2)(a) of the Constitution, as amended. They can waive the right conferred on them, as litigants, by law. In the instant case they can waive the right of appeal conferred on them, as litigants and like all other litigants, by Section 241 of the Constitution read together with Section 24(2)(b) of the Court of Appeal Act. The decision of this Court in ARIORI v. ELEMO (1983) 14 N.S.C 8, particularly the opinion of Eso, JSC at page 37 thereof, puts the question beyond doubt thus –
The next enquiry is to what extent to which a person could waive rights conferred on him by law? When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He sui juris. He is under no longer disability. He should be able to forego the right; in other words, waive it either completely or partially, depending on his choice. The extent to which he has foregone his right would be a matter of fact and each case will depend on its peculiar facts. — A beneficiary under statute should have full competence to waive those right once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.
In the peculiar circumstance of this case, it is my considered view that “a right conferred solely for the benefit of an individual” means the right of appeal conferred on the litigant who may be aggrieved by a decision given or rendered in a suit against him.

There is nothing I can find in either the Constitution or the Court of Appeal Act that forbids waiver by the Respondents herein of their right of appeal.
Waiver operates as estoppel against “the person who is to enjoy the benefit or who has the choice of two benefits (and is) fully aware of his right to the benefit or benefits, but – either neglect to exercise his right to the benefit, or where he has the choice of the two, he decides to take one but not both”: ARIORI v. ELEMO (supra) citing with approval VYVYAN v. VYVYAN 30 bear 60. The exercise of the right of waiver, as Eso, JSC, explains in ARIORI v. ELEMO (supra), has to be voluntary, devoid of any legal disability. It operates thus: if a person with full knowledge of the rights, interest, profits or’ benefits conferred upon or accruing to him by and under the law, intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his right, or that he has suffered by his not having exercised his rights. In the circumstance, just like in the instant case, he should be held to have waived his rights and consequently estopped from raising the issue subsequently.
My Lords, from the facts of this case, wherefrom it is abundantly clear that the Respondents having voluntarily waived their right of appeal, they cannot be heard to complain that they were deprived of that same right. They communicated their election to waive their right of appeal to the Appellant and other parties in the suit at the trial Court. They are in the circumstances estopped from insisting on the same right of appeal. The incumbents of the office of the Attorney-General of the Federation are men of honour who should be seen to be so. Like Caesar’s wife, those men who occupy that hallowed seat since its inception in England in 1461, should be seen to live above board. These persons are expected to be men who should, like Thomas More-King Henry V111’s Attorney-General (who at the pain of death resisted every effort by the King to break the law of the realm) not be seen to publically lick their own spittum. They should be men of candour and valour. The prevarications, the hallmark of the instant case, created the unfortunate impression that those incumbents occupying the seat of the 2nd Respondent who succumbed to the cajolery of the 3rd – 8th Defendants had failed, in their courage, to be fair to all concerned.
This case, subtly, raises yet another issue – the general authority every Counsel has over every cause or matter he is employed or engaged to prosecute or defend. Unless his authority has been expressly limited the ordinary authority of Counsel in any matter he has been engaged includes entering into to comprise or settlement: AFEGBAI v. A.G. EDO STATE (2001) 7 S.C. (Pt. II) 1; (2001) 14 N.W.LR. (Pt. 733) 425. it is indubitable that the 2nd Respondent’s office defended the suit against both the 1st and 2nd Respondents at the trial Court. After judgment of the trial Court the 2nd Respondent found no basis for appealing the judgment. The office of the 2nd Respondent accordingly advised the 1st Respondent. The Plaintiff, herein the Appellant, was further informed that the Respondents had “decided not to appeal (against) the Federal High Court Judgment”. The lower Court had no business questioning the authority and judgement of the 2nd Respondent, as the Counsel for the 1st Respondent, in their considered decision to compromise their undoubted right of appeal, as it did suggesting that the 2nd Respondent did not take into consideration “public interest” that was allegedly affected by the decision not to appeal.
Let me add, before I log out, that a party asking for enlargement of time within which to appeal not only does he have the burden of proving two facts before he gets the indulgence, that is: good and substantial reasons for the delay, and a ground(s) of appeal which prima facie show good cause why the appeal should be heard; he shares additional burden with the Court to ensure that the Rules of Court must prima facie be obeyed: RATNAM v. CUMARASAMY (1964) 3 ALL E.R. 933 at 935; BANK OF BARODA v. MERCANTLE BANK (1987) 6 S.C 341 at 350. Even where the application is not opposed the Court still bears the onerous responsibility of satisfying itself that exceptional circumstances exist to warrant the grant of the indulgence because the Rules of Court must prima facie be obeyed: NWABUBA v. ENEMUO (1988) 5 S.C.NJ. 154. Prevarication of the applicant is not one of such exceptional circumstances.
It is obvious from the entire gamut of the decision of the lower Court that both the lower Court and the Respondents conceded one fact to the Appellant, and that is: the fact that the Respondents had elected not to appeal; and standing on that election or waiver of their right to appeal the judgment delivered on 8th June, 2009, they did nothing any more to exercise or activate their right of appeal until the application, the subject of this appeal, was filed on 28th July, 2010 — more than a year after the judgment. The delay of over one year was rather inordinate. In my firm view, the Respondents, in the affidavit supporting their application for extension of time within which to seek leave to appeal et. al.; did not set forth, in their affidavit, good and substantial reasons for the delay. Upon the effluxion of the period of 90 days within which the Respondents had, by dint of Section 24(2)(b) of the Court of Appeal Act, to appeal; the right of appeal they hitherto had, had dissolved. From that moment they depended on or were at the grace of the Lower Court by virtue of Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. The discretion of the Lower Court to accede to the application like, any other discretion, must be exercised judicially and judiciously. I am of the firm that view when the delay is inordinate and wilful, as in this case, the Lower Court should have refused the application, in order to prevent the abuse of judicial process that –this application apparently smacks of. Taking into consideration extraneous matters in a purported exercise of discretion would render the exercise perverse, injudicious and/or reckless.
Generally, the attitude of appellate Courts to the exercise of discretion by lower courts is that, unless the exercise of discretion by the lower court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently: UNIVERSITY OF LAGOS v. OLANIYAN (1985) 1 N.W.LR. (Pt. 1) 156; WILLIAMS v. MOKWE (2005) 14 N.W.LR. (Pt. 945) 249 at 269; ENYIBROS FOOD PROCESSING CO. LTD v. N.D.I.C. (2007) 9 N.W.LR. (Pt. 1039) 216. The delay in the instant case is inordinate and wilful. In addition, the Respondents, as the applicants, had clearly waived their right of appeal, a fact that not only estops them from resiling from their decision which they communicated to the Appellant, but also makes it inequitable for the Lower Court to indulge them in their toxic prevarication.
This Court, as can be seen from the In re: ADEWUNMl & ORS. (1988) 3 N.W.LR. (Pt. 83) 483; UNIVERSITY OF LAOGS v. OLANIYAN (supra); (Pt. 284) 630; WILLIAMS v. MOKWE (supra), has consistently maintained that the two conditions, under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 or its equivalent, which must be fulfilled to warrant the grant of an application for extension of time for leave to appeal are good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie good cause why the appeal should be heard. The two conditions are statutory and conjunctive, and they are intended to be given effect to by the Courts interpreting them. The Judge’s duty being merely to interpret the statute, and not to make a statute; the Judge when interpreting a statutory provision, as Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, is only to bring out the natural meaning of words in the statutory provision where the words are clear and unambiguous: ABAYOMI BABATUNDE v. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. & ORS. (2007) ALL F.W.LR. (Pt. 372) 1721 at 1752. With this in mind, it is my firm view that UKWU v. BUNGE (supra) was not intended to have laid a new ground rule to the effect that the applicant for extension of time within which to appeal, particularly under Order 7 Rule 10(2) (supra), is no longer required to show good and substantial reasons for delay when he raises, by his proposed grounds of appeal, a jurisdictional issue or any other substantial issue of law. All Ogbuagu, JSC stated in UKWU v. BUNGE (supra) at page 542 is that where such jurisdictional issue is raised in the proposed grounds of appeal he “will be inclined to take a lenient view of the delay in appealing within the prescribed period”. In the instant case the delay was both wilful and inordinate. It was actuated by the deliberate decision or election not to appeal. That is my reason for not taking “a lenient view” of the inordinate delay in not appealing within the prescribed period. I agree with the Appellant that the Respondents could not waive their right of appeal and still want or expect to exercise it. They cannot have both in the circumstances. In judicial chemical laboratory, operated by equity, a waiver of right produces an irreversible permanent change in favour of the third party. Equity will not allow a party to trap and overreach the other. HRH UMEANADU v. A.G. ANAMBRA STATE (2008) 34 N.S.C.Q.R. 1 at 24.

I allow the appeal. The decision of the Lower Court in the appeal No. CA/L/763M/2010, delivered on 24th May, 2011, granting the Respondents extension of time within which to appeal the judgment of the Federal High Court delivered on 8th June, 2009 in the suit No. FHC/L/CS/368/2007, is hereby set aside. Parties shall bear their respective costs.
MARY UKAEGO PETER-ODILI, JSC: I agree with the judgment just delivered by my learned brother, Ejembi Eko JSC and to register my support in the reasoning’s from which the decision emanated, I shall make some comments.
This is an appeal against the decision by the Court of Appeal sitting in Lagos or Lower court or Court below, Coram: Saulawa JCA, Okoro JCA (as he then was) and Jauro JCA granting leave to the respondents to appeal against the judgment of the Federal High Court, Lagos Division Per Mustapha CJ.
The hearing took place on the 13/11/2018 at which the learned Senior Advocate for the appellant. Oluyele Delano adopted the appellants amended brief of argument filed on 7/2/2018 and deemed filed on 13/11/2018 and a reply brief filed on 9/11/2018 and deemed filed on 13/11/2018. The appellant formulated five issues for determination which are thus: –
1. Whether by their letters and conduct, the respondents had abandoned, extinguished, relinquished and waived their right of appeal.
2. Whether the respondents are by their letters and conduct estopped from seeking to appeal against the judgment of the trial court.

3.Whether by failing to make a decision on the appellant’s argument to wit: that the respondents had abandoned, extinguished, relinquished and waived their right of appeal or were estopped from appealing, the decision of the Court of Appeal amounts to a miscarriage of justice?
4.Whether the reason for the failure of the 1st respondent to appeal within time prescribed was attributable to a mistake or inadvertence of counsel which the law would excuse in granting extension of time.
5.Whether the court has no option but to grant an extension of time to appeal to a party who fails to show good and substantial reasons for not appealing within the prescribed time, so long as a proposed ground of appeal prima facie raises an issue of jurisdiction.
Paul Usoro SAN, learned counsel for the respondent adopted the brief of argument as amended, filed on 2/3/2018 and deemed filed on 13/11/18. He distilled two issues for determination which are as follows: –
I. Was the Lower court right in the respondents’ application and holding that the respondents’ Grounds of Appeal numbers 1 and 6 “clearly raised the fundamental and far-reaching issue of jurisdiction” and that “there is no doubt that the general principle has been settled, that where it is established, as in the instant case, the (proposed) grounds of appeal, prima facie, raise the fundamental issue of jurisdiction, the court may not deem it necessary or expedient to inquire into the reasons for the delay in filing the appeal within the period prescribed by law”?
II. Was the Lower court right in holding that the 1st respondent had satisfied the requirement for satisfactory explanation for the failure to appeal within time, in that, the failure of the 1st respondent to so appeal within time was attributable to the “mistake, complacence and/or incompetence of counsel” for which the client should not be punished, to wit: the 1st respondent’s reliance on the advice from the 2nd respondent not to appeal against the FHC Judgment?
I shall utilise Issues 1 and 5 of the appellant in the determination of this appeal for convenience and ease of reference.
ISSUES 1 & 5:
1. Whether by their letters and conduct, the respondents had abandoned, extinguished, relinquished and waived their right of appeal.
5. Whether the court has no option but to grant an extension of time to appeal to a party who fails to show good and substantial reasons for not appealing within the prescribed tine, so long as a proposed ground of appeal prima facie raises as issue of jurisdiction.
Canvassing the position of the appellant, learned Senior Counsel stated that it is trite that an appellate court will interfere with the exercise of discretion by a Lower court if it is shown that there has been a wrongful exercise of the discretion such as where the court below acted under a misconception of law or under a misappropriation of fact and that is the situation in the case in hand for which this court should intervene in those findings of the court below. That what happened in this instance is that the respondents by written statements and conduct communicated to the appellant following the judgment of the trial court which is tantamount to relinquishing or abandoning their right of appeal and thereby extinguished same irretrievably since the rights are waived. He cited Enekebe v Enekebe (1964) 1 All NLR 102 at 106, Demuren v Asuini (1967) All NLR 94 at 101; Ariori v Elemo (1983) NSCC Vol.14 page 8; Ikenta Best (Nig.) Ltd. v A. G. Rivers State (2008) 6 NWLR (Pt.1084) 612; Tika -Tore Press v Abina (1973) NSCC Vol.8 page 642 at 648.

For the appellant, it was further submitted that court of law is duty bound to resolve ail issues put before it which the court below failed to do in this case and is the result should be a nullification of the decision reached thereby. He cited Obi Nwanze Okonji & Ors v George Njokanma & Ors (1991) 7 NWLR (Pt.202) 131 at 150. Irolo v Uka (2002) 14 NWLR (Pt.786) 195 at 225.
Learned counsel for the appellant stated that the court will not visit the wrong doing of counsel on his client which is not the case here in this instance. He cited Akanbi v Alao (1989) 3 NWLR (Pt.108) 143; Ikenta v Best (Nig.) Ltd v A. G. Rivers State (supra).
Oluyele Delano SAN for the appellant stated on that the 1st and 2nd respondents did not give good and substantial reasons for failing to appeal within the-time prescribed by law and so the discretion was wrongly exercised in favour of the respondents in the circumstances, the issue of jurisdiction raised notwithstanding. He referred to ANPP v Albishar (2010) 9 NWLR (Pt.1198) 1084; FGN v A.I.C. (2006) 4 NWLR (Pt. 970) 363; UKwu v Bunge (1997) 8 NWLR (Pt.518) 527; Re Adewunmi ie Adewunmi v Osibanjo (1988) 2 NSCC 67.
Learned Senior Counsel, Paul Usoro for the respondents urges the court to discountenance the appellant’s submissions on the purported waiver of their right of appeal by the respondents and the alleged estoppel consequences of the said waiver. That the reasons for the exercise of the discretion of the court below are fully on display from the record.
The points of departure of one party from the other are for the appellant, that the respondent’s conduct had in law released and or waived its right of appeal which was extinguished irretrievably and so respondents were estopped from seeking to appeal the judgment of the trial court. That 1st respondent’s reason for delay did not constitute a mistake of counsel in respect of which the court will grant an indulgence.

On the other side which is that of the respondents is that this court should affirm the Ruling of the Court of Appeal and dismiss the appeal as frivolous and unmeritorious.
This appeal throws up very interesting facets as one is mindful of the fact that an appellate court will not easily interfere with the exercise of discretion by a lower court such as presented in the case in hand. To interfere, this court has to be satisfied from the showing a material that a wrongful exercise of that discretion has been made such as where the court below acted under a misconception of the saw or under a misapplication of fact such that it is seen that the lower court gave weight to irrelevant or unproved matters or it omitted to take into account issues that are relevant or where it exercised or failed to exercise the discretion on wrong or insufficient materials and so it behoves the appellate court the duty in the interest of justice to disturb that earlier decision. I rely on Enekebe v Enekebe (1964) 1 All NLR 102 at 106; Demuren v Asuni (1967) All NLR 94 at 101; Mobil Oil v Federal Board of Inland Revenue (1977) 3 SC 97 at 141; Sonekan v Smith (1967) 1 All NLR 329; Solanke v Ajibola (1968) 1 All NLR 46 at 52.
It is to be noted that the right of appeal is a personal one conferred on a party by law for the sole benefit of the party through the right is not such as to be open ended or at large for which the party is free to exercise it whenever the fancy takes him no matter how long.
This is because the right of appeal has a time limit within which it can be exercised by the party seeking to appeal and that circumscription is in this instance Section 25 of the Court of Appeal which has set the time frame for a party so wishing to appeal. The right to appeal being personal, nobody or institution can force a party to exercise his right of appeal and in like manner a party is at liberty to release, abandon, relinquish or waive his right of appeal since it is his choice.
A reiteration of the position on this matter of appeal is that the constitutionpersonal is tor the sole benefit of the appellant and no statute which forbids or controls how the respondents may use their rights and the effect of that is that the right is capable of being waived or abandoned or released. Therefore, where a party has decided not to appeal a judgment given against him and he has further decided to communicate to the opposing party with the inaction as far as initiating an appellate process and to the extent that the opportunity and time frame accorded him by law had expired the circumstances may present such a fact that it could be taken that the right to appeal is lost for all time. See Ariori v Elemo (1983) NSCC Vol. 14 page 8.
A definition of the word “waiver” will throw more light to what I am trying to communicate and so I go to Black’s Law Dictionary 6th Edition which defines “waiver” to mean:
“To abandon, throw away, surrender a claim, privilege, a right or the opportunity to take advantage of some defect, irregularity or wrong. To give up right or claim voluntarily”.

Halsbury’s Laws of England 4th Edition, Vol. 16 stated in its way thus: –
“The primary meaning of waiver has been said to be the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct, it may arise by virtue of a party making an election, for example whether or not to exercise a contractual right”.
Co-relating the definitions and the legal principles surrounding the right of appeal of an individual or party to the facts in the case at hand wherein Exhibits 4, 5 and 7 annexed to the appellant’s counter affidavit and Exhibit PUC 6 and PUC 7 of the respondents’ supporting affidavit of the motion for extension of time to appeal showcased respondent’s decision not to appeal which was communicated to the herein appellant.
For effect, I shall recast excerpts of Exhibit PUC 7 of the respondents wherein they stated thus: –

“…following the said judgment, the 1st and 2nd defendants have carefully reviewed same in line with the facts which emerged at the trial and facts at its disposal bordering on the original allocation and have decided not to appeal the judgment. The Ministry has no further interest in the matter. In the circumstances since the Ministry no longer has interest in the matter, you are advised to meet with the plaintiff for an amicable settlement of the matter”.
Furthermore, from the Record at page 179, the 1st respondent declared as follows: –
“I am directed to refer to your letter of 6th August 2009 on the above subject matter and to advise as follows:
(i) Government has already decided to accept the decision of the court having found no basis for challenging same on appeal”.

The waiver was done by the Attorney General in such a definite unequivocal way leaving nothing for guesswork or speculation as to what was intended and with the Court of Appeal finding that the Attorney General gambled away the right of appeal, it becomes curious to make the. about turn to extend time for an appeal which clearly had been extinguished in the circumstance. The situation falls in line in similarity to the case of Ikenta Best (Nig.) Ltd v A. G. Rivers State (2008) 6 NWLR (Pt.1084) 612. That position is well captured in the case of Tika-Tore Press v Abina (1973) NSCC Vol.8 Page 642 at 648 wherein this court stated thus: –
“The principle, as we understand it, is that where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relationship between them to be acted on accordingly, the once the other party has taken him at his words and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relation as if no promise or assurance had been made by him”.
Halsbury’s Laws of England Vol.37, 4th Edition Page 522, Para. 682, the learned authors considering the applicability of the principle of estoppel to a party’s right of appeal and Stated thus”-
“A party may be estopped from appealing by his conduct after the judgment or award, or may be that conduct have released the right of appeal at law or in equity”.
The above definition is in tandem with the provisions of Section 169 of the Evidence Act 20121 (as amended) and when taken in context with the facts on ground in which it is without dispute that the respondents expressly and in writing communicated their decision to accept the judgment of the trial court and not to appeal, which documents were sent to the appellant in Exhibits PUC 6, PUC 7 and PUC 8. Also factual is that respondent encouraged the appellants to explore and enter into peaceful negotiations for amicable settlement with persons claiming through them as affected by the said judgment. It is therefore no wonder that appellant proceeded to embark on the settlement and these evidenced in the appellant’s counter affidavit and further counter affidavit which are not controverted. Therefore, it is difficult for one not to say that by the operation of the rules of estoppel the respondents should not be allowed to go back on the earlier communicated position which set the appellants into taking actions that restructured the status quo of a possible appeal of the trial Court’s judgment. A turnaround from that posture of the respondent certainly placed the appellant in a disadvantage such as akin to pulling the carpet off the party’s feet when unexpected. See Ude v Nwara (1993) 2 NWLR (Pt.278) 689 at 662-663.
The respondents are pushing for a leeway just as they succeeded in the Court of Appeal by seeking refuge on a hapless litigant not to be visited disadvantageous^ by the mistake of counsel. The situation and facts on ground do not in my humble opinion fall so simplistically within that categories of infractions, mistake or inadvertence of counsel for which the court would turn the other way to grant an indulgence where an expiration of time to appeal or do anything for that matter has taken place. I say this advisedly having in view the common ground facts available. Certainly the advice of a Director of Legal Services of the Ministry of Justice and the definite opinion of the Attorney General communicated to the other party with the further push for that other party to go on an amicable settlement as the respondents are abiding by the trial court’s judgment. These certainly are not light postures but Government position reached with due consideration and the matter ended. I agree with learned counsel for the appellant that the difference in opinion of the two successive Attorney General for the 1st applicant/respondent does not constitute a mistake of counsel in respect of which the court will grant an indulgence. This court made this very clear in Akanbi v Alao (1989) 3 NWLR (Pt.108) 143, Per Eso JSC held as follows: –

“I think it would be extending Ibodo v Enarofia case beyond reason if every considered or assumed considered professional decision of a counsel which has gone wrong should qualify as ground of appeal. We did say once, and I am still of the firm view that the conduct of a case lies wholly with counsel. The rule really should be “caveat client”. If you choose a counsel, you should permit him, once seized of the case to conduct the case in the manner of his professional ability. Indeed, that is part of the independence of the Bar. If there is lapse in his office, his clerk forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course the client should not be made to suffer. If, however, he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will of constitute a right for the client for utilization as a ground of appeal. For, if it were not so, the profession would be in jeopardy”.
The reason given for delay by the respondents in this case is captured by the lower court at page 227 of the Record as follows-
“…the learned senior counsel referred to paragraphs 7-12 of the affidavit, stating the reason for the delay. The most critical of which, according to the learned SAN, was that the 2nd applicant’s predecessor took a decision that he would not appeal against the judgment of the lower court in question. However, the 2nd applicant thought otherwise, thus took a decision to appeal and gave instruction to that effect”.
This reason is similar to that given by the Attorney General of Rivers State in Ikenta Best (Nig.) Ltd v A. G. Rivers State (supra). In this case, the Attorney General of Rivers State in his affidavit admitted that previous Attorneys’ General had decided not to appeal against the judgment of the trail Court because they formed an opinion that the judgment did not affect them. The new Attorney General took a different opinion and then applied for an extension of time to appeal.
The Court of Appeal accepted this reason as being a mistake of counsel, but on appeal, your lordships overruled the decision and agreed with the dissenting decision of Ikongbe JCA reported in A.G. Rivers State v Ikenta Best (Nig.) Ltd (2005) 2 NWLR (Pt.911) 1 at 25, who in part said:
“If the happening of such events brought about by the deliberate and considered decision of that person or his predecessor in office, I do not think he or his successor-in-office should be allowed to use this as excuse for failure to do what enquired of him within time the offending decision by him of his predecessor in office”.
Onnoghen JSC (as he then was) held in Ikenta Best (Nig.) Ltd v A.G. Rivers State (Supra) that the reason given was incapable of being stretched to include error of counsel. 8We therefore urge your lordships to hold that the reason given by the 1st respondent does not constitute a mistake of counsel which the law will excuse in granting extension of time to appeal to it.
The Court of Appeal in this instance had made a crucial finding and that is that the Attorney General gambled away the right of appeal and when a thing is gambled away it is never recalled or nullified, that thing remains sent away to the other person. The new Attorney General attempting to change the situation would be no more than an attempt because the Government, the earlier Attorney General represented remains committed and cannot wriggle from that position its official counsel had placed it. it is a risk a government or a person takes in appointing an Attorney General or a legal practitioner to represent it. The client in this instance the Government rises or gain an advantage or on the other falls or loses with the advice or action of that representative. It is for that reason that I posit that the Director, Legal Services of the 1st respondent who took the decision on behalf of the Ministry is not your ordinary client, a lay man, but a learned legal practitioner who cannot be given the same indulgence. In Kotoye v Saraki 1995 NWLR (Pt.395) 256, in circumstances where the party (who is also a legal practitioner) took a decision not to appeal, uwais DSC (as he then was) at Pages 7 and 8 said:
“Any act of gambling involves risk taking and no gambler can claim not to be aware of that. When a counsel makes a mistake, such mistake or its consequence should not, in general, be visited on his client who, in most cases is a layman. Can the defendant/applicant who has been or is a legal practitioner be such a client? I certainly think not. There is therefore, no good reason given for the delay bringing this application”.
Again, I refer to Ikenta Best (Nig) Ltd v A. G. Rivers State (supra) where at page 669-line H, Mohammad JSC refused to extend time to appeal partly because:

“The name of the Attorney General of Rivers State has featured through the proceedings of the two courts below as a party in the suit/appeal. Thus, it is not as case where one counsel who, under a fiduciary relationship with his client, refuses to act in order to cause loss or injury to his client. In this appeal, it is the client himself who caused injury to himself by refusing to act timorously”.
Another area to be brought into this discourse has to do with what is required for the agitation of the discretion of the Court of Appeal to extend the time already expired and that has to do with the two conditions which are conjunctive and not disjunctive therefore the two must go together. They are:
(a) That there are good and substantial reasons for the failure to appeal within he period prescribed by the Court of Appeal Act and

(b) That there are grounds of appeal which prima facie show good cause why the appeal should be heard.
Then turning to the interpretation of Order 7, Rule 10 of the court of Appeal Rules 2007 upon which the court below has power to extend the tie for a party to appeal against a judgment trial court which order and rules are impari materia to the old Order 3, Rule 4 (2). The two conditions must co-exist. See Ikenta Best (Nig.) Ltd v A. G. Rivers State (supra), ANPP v Albishar (2010) 9 NWLR (Pt.1198) page 1084.
Indeed, the Court of Appeal clearly laid emphasis on the fact of the ground of appeal being a challenge to jurisdiction of the trial court, strong as that point is cannot override the missing angle being the other condition which is the good and substantial reason for the delay. That missing link makes it impossible for a favourable exercise of the discretion for a proposed appeal out of time. See FGN v A.I.C. (2006) 4 NWLR (Pt.970) at Page 363, one of the proposed grounds of appeal was the issue of jurisdiction, but the court refused to extend time. It held:
“On the 2nd requirement, i.e. ground of appeal which prima facie show why the appeal should be heard. Although there is a ground which seeks to challenge the jurisdiction of the trial court, yet the requirement of the law is that both requirements i.e. good and substantial reason and ground of appeal which prima facie show cause why the appeal should be heard, are interwoven such that they must co-exist. If one is satisfied the Other is not, then the whole application will collapse. See Okere v Nlem (1992) 4 NWLR (Pt.234) 132; Okwuiume v Anoliefo (1990) 1 NWLR (Pt.425) 468; Balogun v Afolalu (1994) 7 NWLR (Pt.355) 206; FHA v Abosede (1998) 2 NWLR (Pt.537) 177 at P.187”.
In the final analysis there was a miscarriage of justice at the court below in granting the extension of time to the respondents to appeal in the light of the respondents expressly jettisoning appeal of the trial court’s decision upon which the appellant was set on a journey that restructured its position and which the respondents cannot turn award to seek appeal and an anchor of mistake of counsel is a principle that cannot share space with the application for extension of time. That removing the one leg of the conditions
on which S favourable disposition to such application can be made, the application just can make the finishing line and ought to have been refused. The respondents citing Ukwu v Bunge (1997) 8 NWLR (Pt.518) 527 do so out of context because Ukwu’s had nothing to do with the applicant waiving his right of appeal as in the case at hand.
The appeal is definitely meritorious and in line with the better and fuller reasoning in the lead judgment, I allow it as I abide by the consequential orders made.
AMIRU SANUSI JSC: I was obliged with a copy of the Judgment just rendered by my learned brother Ejembi Eko JSC. His lordship had ably and adequately treated all the relevant issues canvassed by the learned counsel of the parties.

I agree with the reasoning and conclusion arrived at in the lead Judgment that this appeal has substance and should be allowed and it is accordingly allowed by me. I abide by the consequential orders made in the Judgment including one on costs.

KUMAI BAYANG AKAAHS, JSC: My learned brother, Ejembi Eko JSC, obliged me with a copy of his judgement just delivered in which he found merit in the appeal and allowed same because of the inordinate delay displayed by the respondents before they applied for extension of time to appeal to the lower court in Suit No. FHC/L/CS/368/2007. The lower court was extremely lenient in granting them the extension to appeal. The two conditions which must be fulfilled to warrant the grant of the application for extension of time for leave to appeal stipulated in Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 – namely the good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima-facie show good cause why the appeal should be heard must co-exist.
I therefore endorse the order allowing the -appeal and setting aside the order granting the respondents extension of time within which to appeal against the judgement of the Federal High Court delivered on 8 June, 2009 in Suit N FHC/L/CS/368/2007. No costs are made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have had a preview of the judgment of my learned brother Ejembi Eko, JSC just delivered. I agree with the reasoning and conclusion that there is merit in this appeal.

It has always been the position of the law that a party may not approbate and reprobate at the same
time in the conduct of his case. In other words, a party may not blow hot and cold. See: F.R.N. Vs Iweka
(2013) 3 NWLR (Pt. 1341) 285: Agide Vs Kelani (19851 11 SC 124. As submitted by learned counsel
for the appellant, an informed decision was made by the respondents, jointly and severally not to appeal against the judgment of the Federal High Court, Lagos delivered on 8th June, 2009. In the affidavit in support of the motion on notice filed on 28/7/2010, more than a year later, it was averred in paragraph 8(b)(i) and (ii) as follows:
i. After the delivery of the Federal High Court Judgment, the Lagos Zonal Office of Federal Ministry of Justice (FMOJ) who were directly defending the Applicant in this matter, wrote to the Client Ministry, (then known as Federal Ministry of Works, Housing and Urban Development) on 07 July 2009 “that it is the considered view of this Ministry…. that an appeal in this matter is not likely to succeed, and as such suggest negotiation with the Plaintiff as a viable alternative.” Photocopy of the letter is attached hereto and marked Exhibit PU
ii. The Client Ministry accepted the “considered view” contained in Exhibit PUC6 on which basis a letter was sent by the Lagos Zonal Office of Federal Ministry of Justice to Sofunde, Osakwe, Ogundipe and Belgore on l4h August 2009 informing them that the Applicant had “decided not to appeal (against) the “Federal High Court judgment. Photocopy of the said letter is attached hereto and marked Exhibit PUC7.”
The letter dated 14th August 2009 (Exhibit PUC7) can be found at page 117 of the record. It reads, inter alia:
“I refer to the Judgment of the Federal High Court in this suit, dated 8th June, 2009, per Honourable Chief Judge, Mustapha, OFR, FCI Arb. I am directed to inform you that following the said judgment, the 1st and 2nd defendants have carefully reviewed same in line with facts which emerged at the trial and facts at its disposal bordering on the original allocation and have decided not to appeal the said judgment. The Ministry has no further interest in the matter,”
(Underlining Mine).
The 1st Respondent, specifically by its letter dated 6th August 2009, addressed to the 2nd Respondent (page 145 of the record) stated in paragraph 2 thereof:
“I am directed to inform you that this Ministry shares the opinion of the office that it would be pointless pursuing the matter further and that the option of negotiation should be pursued.”
(Underlining mine)
The above position was taken notwithstanding intense pressure put upon the 2nd respondent by its co-defendants at the trial court to appeal against the decision. Having taken the informed decision not to appeal against the judgment in favour of negotiations towards an amicable resolution, the respondents allowed the time within which to exercise their right of appeal to run out. Not only that, having received direct communication of the decision not to appeal against the judgment, the appellant altered their position by entering into negotiation with some of the persons affected by the judgment of the trial court.
Section 169 of the Evidence Act is very clear. It provides as follows:
“When one person has either by virtue of an existing judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
This is known as the rule of estoppel by conduct. In Nsirim Vs Nsirim (2002) 3 NWLR (Pt. 7551 697 @714 – 715 H – A. this court per Iguh, JSC explained the rule thus:
“…. where one by his words or conduct wilfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter, a different state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise known as estoppel by matter in pais has been stated. See: Joe Iga & Ors Vs Ezekiel Amakiri & Ors (1976) 11 SC1; Gregory tide Vs Clement Nwora and Anr (1993) 2 NWLR (Pt. 278) 638 @ 622-663.”
See also: Oyerogba & Anor. Vs Egbewole Olaopa (1998) 13 NWLR (Pt. 583) 509; Bank of the North Vs Yau (2001) 10 NWLR (721) 408.
The excuse given that the successor in office of the 2nd respondent was of a different view or that the former Attorney General of the Federation was inept, is without substance and ought not to have been accepted by the lower court. The 2nd respondent is the Chief Law Officer of the land, presumed to be endowed with all the knowledge and erudition associated with such an office. The office is also staffed with-competent legal officers well versed in the law. As observed earlier, the decision not to appeal against the judgment was taken after a thorough examination of all the issues relating to the suit and the honest prospects of success on appeal.

Having concluded that they were not likely to succeed, the respondents communicated their decision in writing to the appellant and recommended exploring negotiations with the affected parties. I agree with learned counsel for the appellant that this scenario is very different from a situation where they intended to exercise their right of appeal but failed to do so within the time allowed by law. This is not a situation where “mistake of counsel” would avail them.
The lower court made a finding that the Hon. Attorney General had gambled away his right of appeal. I agree. The respondents voluntarily waved their right to appeal and therefore ought not to have been indulged by the court below. See: Ariori Vs Elemo (1983) 1 SC 81; Odura Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt. 523) 1; Adeniyi Vs Govering Council, Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426.
This is a case in which the discretion of the lower court was neither exercised judicially nor judiciously. I am satisfied that the appellant has shown sufficient grounds for this court to interfere.
For these and the more detailed reasons well-articulated in the lead judgment, I find merit in this
appeal. It is hereby allowed. The ruling of the lower court delivered on 24/5/2013 is hereby set aside. The
parties shall bear their respective costs.
Appeal allowed.

COUNSELS

OLUYELE DELANO, SAN for the Appellant with Mutiu Akinrinmade Esq., Ahmed Oyegbami Esq. and Alex Ozougu Esq.|PUAL USORO, SAN for the Respondents with Ime Edem-Nse Esq., Ayi-Ekpenyong Imah Esq. and Ezinne Ukwu Esq.|

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