GUFFANTI NIGERIA PLC. V. PEDRELLA ANSTALT VADUZ & ORS
(2011)LCN/4551(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of May, 2011
CA/L/140M/09
RATIO
PRAYERS IN A MOTION: RATIONALE FOR THE POSITION OF LAW THAT AN APPLICANT IS BOUND BY THE PRAYERS IN HIS MOTION
It is trite that an applicant is bound by the prayers in his motion and the case of a party is considered and granted on the reliefs he has asked for. This is because the opponent is entitled to know the case being presented and which he has to meet. The rationale for this position of the law is to avoid surprises during proceedings and to ensure fair hearing to the parties without showing favour to one side or the other. See Abdulkarim v. Anazodo (2006) 11 NWLR (Pt.991) 299 at 314-315. Ekpeyong v. Nyong (1975) 2 SC 71, Gov. Gongola State v. Tukur (1989 4 NWLR (pt. 117) 592. PER ADAMU JAURO, J.C.A.
DISCRETION OF THE COURT: WHETHER THE POWER TO RESTORE AN APPEAL EARLIER DISMISSED IS DISCRETIONARY AND WHAT AN APPLICANT MUST SHOW FOR THE COURT TO EXERCISE ITS DISCRETIONARY POWER IN GRANTING HIS APPLICATION
The power to restore an appeal earlier dismissed is discretionary and the operative words pursuant to the aforementioned Rule are “for good and sufficient cause”. Once an applicant can show good and sufficient cause, the discretion will surely be exercised in his favour by granting the application. PER ADAMU JAURO, J.C.A.
APPLICATION FOR EXTENSION OF TIME TO COMPILE AND TRANSMIT RECORD: FACTORS THAT WILL BE CONSIDERED IN DETERMINING WHETHER OR NOT AN APPLICATION FOR EXTENSION OF TIME TO COMPILE AND TRANSMIT RECORD BROUGHT PURSUANT TO ORDER 7 RULE 10 OF THE COURT OF APPEAL RULES, 2007 WILL BE GRANTED
In determining good and sufficient cause to warrant the exercise of the discretion, the reason for the applicant’s failure to compile and transmit the record of appeal within the stipulated time is a major factor to be considered. Secondary and subsidiary factors like delay in making the application to restore the appeal or whether the restoration of the appeal may prejudice the respondent may be considered. See the case of Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) NWLR (pt. 164) 526 at 536. PER ADAMU JAURO, J.C.A.
SETTLEMENT OUTSIDE COURT: WHETHER THE FACT THAT THERE WERE NEGOTIATIONS FOR SETTLEMENT OUT OF COURT IS A GOOD REASON TO STOP THE APPLICANT FROM PURSUING ITS APPEAL
Admittedly and it is indeed trite law that the fact that there were negotiations for settlement out of court is not a good reason to stop the applicant from pursuing its appeal. PER ADAMU JAURO, J.C.A.
JUSTICES
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
GUFFANTI NIGERIA PLC. Appellant(s)
AND
PEDRELLA ANSTALT VADUZ
AND
ANTONIO GUFFANTI
(for himself and as heir of Engr. Felice Guffanti (Deceased)
Persons ordered to be joined as parties by Order of Court dated 22/5/2000.
CARLO MARIA GUFFANTI
(for himself and as heir of Mario Guffanti (Deceased) Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Lead Ruling): The applicant herein by its application dated and filed 25th February 2009, prayed this court for the following reliefs:
“1. An Order extending the time within which to compile and file the Record of Appeal in this matter.
2. An Order of this Honourable Court directing that the Appeal be heard on Exhibit ABK3, the already compiled and filed Record of Appeal.
3. An Order setting aside the dismissal of the Appellant/Applicant appeal which order was made on the 25th of February, 2009.
4. An Order restoring the stay of execution made in favour of the Appellant/Applicant pending the hearing and the determination of the Appeal filed by the Appellant.
5. And for such further and other Orders as this Honourable Court may deem fit to make in the circumstance”.
The application was brought pursuant to Order 7 Rule 10, Order 8 Rules 4, 18, 19 and 20 and Order 19 Rule 2 of the Court of Appeal Rules 2007 and the inherent jurisdiction of this court.
Prof. A. B. Kasunmu SAN leading Mr. A. B. Kasunmu for the applicant stated that the application is supported by an affidavit of 18 paragraphs and a further affidavit of Dr. Festus Ajayi sworn to on 17th March, 2009 and another further affidavit sworn to on 13th January, 2010 exhibiting the ruling of this court dismissing the appeal. Learned senior counsel placed reliance on the three affidavits and concentrated mainly on the further affidavit of Dr. F. A. Ajayi. The learned Professor placed special emphasis on paragraphs 1 to 7 and 14 to 18 of the further affidavit of Dr. Ajayi. The learned Professor stated that in further support of the application is a reply affidavit dated and filed on 15th February, 2010 in response to the counter affidavits of the three respondents. Learned senior counsel submitted that there was an attempt to settle the matter and a letter to that effect has been attached to the further affidavit of Dr. Ajayi. Learned senior counsel further posited that the settlement efforts affected the tempo of the appeal and if these facts were made available to the court the appeal would not have been dismissed. In concluding, the learned Professor urged the court to grant the application and order the appellant to file his brief.
In opposing the application, Mr. E. D. Onyeke leading V. A. Adedipe Esq. and Mrs. G. Omole for the 1st Respondent stated that he filed a counter affidavit dated 13th May, 2009. Learned counsel relied on all the averments contained in the counter affidavit and exhibits attached. Learned counsel stated that all the prayers in the application are hinged on prayer three which sought for the setting aside of the order of this court made on the 25th February 2009, dismissing the appeal. Learned counsel submitted that the application is anchored on Order 8 Rule 20 of the Court of Appeal Rules 2007, hence the proper relief to be applied for by the applicant is for an order to restore the appeal and not to set aside the order dismissing the appeal. Learned counsel made a distinction between an order setting aside the order dismissing the appeal and the restoration of the appeal. Learned counsel argued that under Order 8 Rule 20 of the Rules of Court, good reasons must be given for the restoration of the dismissed appeal while for setting aside an order or judgment the conditions to be satisfied are about six, namely where judgment is obtained by fraud or without jurisdiction etc. In support of the submission, reference was made to the case of Dana Impex Ltd. v. Aderotoye (2006) All FWLR (Pt. 308) 1338 at 1349. Learned counsel contended that the conditions set out in the earlier cited case are not applicable to this application.
Learned counsel further contended that parties are bound by their prayers and having asked for setting aside of the order dismissing the appeal as against restoration of the appeal, the application is bound to fail. In support of this contention reference was made to the case of D.Y.S Trocca Valsesia & Co. v. Osaehae (2008) All FWLR (Pt.413) Pg. 1313 at 1337 – 1338. Learned counsel urged the court not to assist the applicant in rewriting the prayers. Learned counsel argued that a court cannot out of sympathy with a party, try assisting the party by going outside the Rules of Court. In support of this submission, reference was made to, Kraus Thompson Organisation v. NIPSS (2004) All FWLR (Pt. 218) 797 at 809, (2004) 17 NWLR (Pt. 901) 44.
Learned counsel submitted that the contention of the applicants to the effect that negotiation for settlement affected the tempo of the appeal be discountenanced. Learned counsel argued that even where there are negotiations for settlement parties should still pursue their appeal. In support of this argument reference was made to the case of Ikenta Best (Nig) Limited v. Att. Gen. Rivers State (2008) 6 NWLR (Pt. 1084) 612.
Learned counsel urged the court to hold that there are no good and substantial reasons advanced in the application to warrant revisiting the dismissal and the appeal should stand dismissed.
In further opposition to the application Mr. M. A. O. Okulaja SAN leading Mr. O. A. Alalade and Mr. Olatunji Oduntan for the 2nd and 3rd Respondents, stated that they filed a counter affidavit dated 13th May, 2009. Learned senior counsel relied on all the averments in the counter affidavit and the counter affidavit of the 1st Respondent and also adopted and associated himself with the submission of the learned counsel for the 1st Respondent. Learned senior counsel made reference to paragraph (b) of page 11 of the lead ruling dated 25th February, 2009 wherein the appeal was dismissed for want of diligent prosecution. Learned senior counsel posited that prayers 1, 2 and 4 are predicated on the existence of a valid appeal and the appeal having been dismissed the said prayers go to no issue as they are of no moment and should hence be discountenanced.
On the second leg, learned senior counsel argued that once an appeal is dismissed for lack of diligent prosecution, this court lacks the power to restore the appeal. In support of this contention reference was made to the following cases: Ogbu v. Urum (1981) 1 All NLR 324 at 329, Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255 at 270 Yonwuren v. Modern Signs Nig. Ltd (1985) 1 NWLR (Pt.2) 244 at 256-258. Learned senior counsel submitted that the application can only be considered under the equitable jurisdiction of the court and in the circumstances of this application the court cannot exercise its equitable jurisdiction to assist the applicant. In support of this position, reference was made to the following cases: Oluyemo v. Titilayo (2009) All FWLR (Pt. 485) 1674 at 1694, Greenbelt V. FBN Plc (1996) 6 NWLR (pt. 455) 502 at 507. In concluding, learned senior counsel posited that the affidavits have not disclosed any good and sufficient reason for the restoration of the appeal and urged the court to dismiss the application.
In a short response, Prof. Kasunmu SAN re-stated that the appeal was dismissed pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007. The learned Professor stated that the wrong numbering of the reliefs is not fatal to the application. On the issue of setting aside, it was submitted that all arguments canvassed by the respondents are technical and all that was being prayed is that the appeal be restored and heard on the merits. It was further contended that all the cases cited are not relevant to the application as they were decided on the 2002 Rules in relation to non compliance with the condition of an appeal. It was further argued that even though ‘restoration’ was not used, it should not affect the success of the application. The learned Professor further posited that good reasons have been disclosed in the affidavit and that the grounds of appeal and the affidavit of Dr. Ajayi satisfies the requirement of equity. In concluding, learned senior counsel urged the court to grant the application.
The foregoing so far is a summation of the submissions made by the respective parties to the application. It is clearly not in dispute that the appeal herein was dismissed by this court on grounds of failure to transmit record of appeal pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2007. See the ruling of this court dated 25th February 2009, marked exhibits ‘ABK5’ and attached to the further affidavit of Sola Odeyinka. The applicant is now back to court with the present application and the two sets of respondents vehemently opposed same.
The two set of respondents in their submissions contended that all the prayers in the application are anchored on prayer three. It was further argued by the respondents that prayer three sought for an order setting aside the order of this court made on 29th February 2009 dismissing the appeal in place of seeking the restoration of the appeal as provided in Order 8 Rule 20 of the Rules of Court. It was further argued that the said prayer for setting aside is not applicable to the present application and ought not to be granted. The case of D.Y.S Trocca-Valsesia & Co. V. Osaghae (supra) was cited in aid of the aforementioned submission.
It is trite that an applicant is bound by the prayers in his motion and the case of a party is considered and granted on the reliefs he has asked for. This is because the opponent is entitled to know the case being presented and which he has to meet. The rationale for this position of the law is to avoid surprises during proceedings and to ensure fair hearing to the parties without showing favour to one side or the other. See Abdulkarim v. Anazodo (2006) 11 NWLR (Pt.991) 299 at 314-315. Ekpeyong v. Nyong (1975) 2 SC 71, Gov. Gongola State v. Tukur (1989 4 NWLR (pt. 117) 592.
The appeal herein as earlier stated in this ruling was dismissed pursuant to Order 8 Rule 18 of the Court of Appeal Rules, 2007. The application herein, particularly prayer 3 thereof is hinged on order 8 Rule 20 of the Court of Appeal Rules, 2007 which provides thus:
“An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored and any such application may be made to the court, which may in its discretion for good and sufficient cause order that such appeal be restored upon such term and it may think fit”.
Having cited the relevant Order and Rule upon which the prayer is hinged, I am of the firm view that the respondents were never misled or taken by surprise as to what was sought for in the said relief. Closely connected to this, is the case of D.Y.S Trocca Valsesia & Co. V. Osaghae (supra) cited by the respondents. In the aforementioned case, the court refused an application to relist an appeal earlier dismissed for non compliance pursuant to order 3 Rule 20 of the Court of Appeal Rules, 2002. There is however a slight distinction between the aforementioned case and the application at hand. In the earlier cited case, the record was not transmitted, appeal entered and listed in the cause list of the Court of Appeal before it was dismissed. The court held that relisting the appeal would presuppose that the appeal sought to be relisted had been listed in the cause list of the Court of Appeal before it was dismissed, and since it was not entered and listed in the court in accordance with order 1 Rule 21 of the 2002 Rules when it was dismissed it cannot therefore be relisted. In the present application, the appeal was not entered before it was dismissed, however the slight difference is that the relief sought is not the relisting of the appeal as in the earlier cited case but rather setting aside the order dismissing the appeal. For all intents and purposes and in the interest of justice, the prayer having been brought under the correct order namely Order 8 Rule 20 of the Rules of Court; it is aimed at restoring the appeal earlier dismissed. See also paragraph 21 of the affidavit filed on the 17th March 2009 where it was averred thus:
“That all the foregoing events have prompted the appellant’s present application disposed to exercise its power under Order 8 Rule 20 to set aside its previous Ruling and restore the appeal for hearing and also grant the Appellant extension of time within which to compile and file the necessary Record of Appeal so that in the end the present case in the interest of justice be disposed on the merits”.
The prayer therefore can be loosely accommodated under Order 8 Rule 20 of the Court of Appeal Rules, 2007.
The next aspect to be considered is the contention of the 2nd set of respondents to the effect that once an appeal has been dismissed this court lacks the power to restore same. In support of the contention reference was made to the cases of Ogbu v. Orum (supra) Olowu v. Aboloye (supra) and Yonwuren v. Modern Signs Nig. Ltd (supra). The aforementioned authorities classified dismissal of an appeal for want of prosecution into 3 or 4 categories, namely dismissal for non compliance, failure to transmit record, absence of appellant and failure to file in brief of argument. The appeal can be restored in all the other categories of dismissal for good reason shown except where the dismissal was on grounds of failure to file the appellants brief of argument. The cases cited do not support the contention that all appeals dismissed for want of prosecution cannot be restored.
The grant of the reliefs sought in an application of this nature is purely discretionary and the discretion must be exercised judicially and judiciously. The applicant has the responsibility of placing enough materials before the court to warrant granting the application. See Williams v. Hope Rising Voluntary Funds Society (1981) 1-2 SC 145 at 152 – 153. The appeal as earlier stated was dismissed on grounds of failure to compile and transmit record pursuant to order 8 Rule 18 of the Rules of court, which provided thus:
“If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with Rule 4, the respondent may by notice of motion move the Court to dismiss the appeal”.
The present application particularly in relation to prayer 3, was brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules, 2007.
The said Rule had earlier been reproduced in this ruling but for the purpose of clarity and emphasis it will be reproduced even at the expense of repetition. The said Rule provides thus:
“An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit”.
The prayer for extension of time to compile and transmit record was brought pursuant to order 7 Rule 10 of the Court of Appeal Rules, 2007. The power to restore an appeal earlier dismissed is discretionary and the operative words pursuant to the aforementioned Rule are “for good and sufficient cause”. Once an applicant can show good and sufficient cause, the discretion will surely be exercised in his favour by granting the application.
In determining good and sufficient cause to warrant the exercise of the discretion, the reason for the applicant’s failure to compile and transmit the record of appeal within the stipulated time is a major factor to be considered. Secondary and subsidiary factors like delay in making the application to restore the appeal or whether the restoration of the appeal may prejudice the respondent may be considered. See the case of Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) NWLR (pt. 164) 526 at 536. The facts heavily relied upon by the applicant based on his submissions are paragraphs 1 – 7 and 14 to 18 of the further affidavit of Dr. Ajayi filed on 17th March, 2009. The said paragraphs are hereby reproduced thus:
“1. That I have been Counsel for the Appellant/Applicant in the abovementioned Suit since its commencement and up to the present and so I am cognizant of the facts, records and circumstances appertaining to the Suit.
2. That both Antonio Guffanti and Carlo Maria Guffanti, (the Third parties abovementioned) who succeeded their respective fathers as Joint Managing Directors of Guffanti Nig. PLC after the latter’s death, and though they were served by order of Court with the Third Party Notice at Milan in Italy on the 30th of June 2000, they never at any time entered appearance nor participated in any way whatever in the proceedings until in this Honourable Court on the 10th day of February, 2009, M.A.O. OKULAJA, S.A.N. announced his appearance for them
3. That in spite of their non-appearance in the case, KAYODE-SOFOLA, Esq., SAN. who was Counsel to PIDRELA in the lower Court, filed for ANTONIO GUFFANTI and CARLO MARIA GUFFANTI aforementioned a Notice of Appeal dated the 19th day of April, 2001 and filed on the 20th of April, 2001 against the lower Court’s order for service of the Third party Notice on them, but that appeal has never been pursued up to the present. A copy of the Notice of Appeal as EXHIBIT “A” hereto.
4. That from information which has been obtained from the Nigerian Directors of GUFFANTI NIG. PLC and also through LYNX SECURITIES SERVICES, whom are private international investigators in London, which information I verily believe, I have been able to see, that MARIO GUFFANTI and FELICE GUFFANTI, the original owners of GUFFANTI NIG. PLC and after them their respective sons, ANTONIO GUFFANTI and CARLO MARIA GUFFANTI, are the owners of PIDRELA as it has come out, for instance as follows:-
(i) MARIO GUFFANTI, the father who was a Joint Managing Director of GUFFANTI NIG. PLC was at the same time the sole Executive Director of PIDRELA, a foreign company incorporated at VADUZ in LEICHESTEIN.
(ii) Negotiations with the Nigerian Directors of GUFFANTI NIG. PLC regarding the alleged indebtedness of the latter of PIDRELA have always been handled by ANTONIO GUFFANTI and CARLO MARIA GUFFANTI or their Nigerian Alternate Directors who fully participated in endeavours to render GUFFANTI NIG. PLC’s Annual Accounts respectable and so enhance the Company’s business prospects by removing the amount allegedly owed to PIDRELA from the body of the Accounts and transferring it to a less adversely reading foot-note as shown by the Resolution in writing dated 19th February, 2002 unanimously signed by all the Directors as in EXHIBIT “B” hereto.
(ii) Even when a member of the Company’s Board of Directors traveled to Italy some years back to explore prospects of amicably sorting out the whole matter, the only persons he met and who spoke for PIDRELA and also for the GUFFANTI Family have been ANTONIO GUFFANTI and CARLO MARIA GUFFANTI.
5. That after this Honourable Court had granted a stay of execution of the lower Court’s judgment for N157 million with interest, I personally advised the Nigerian Directors of GUFFANTI NIG. PLC as to the pursue a prosecution of the appeal against that judgment but they re-acted by informing me that the two sides were then exploring the possibility of an amicable settlement and so I should not take further steps for prosecuting the appeal.
6. That subsequently, I received from the Managing Director of GUFFANTI NIG. PLC copy of letter dated 19th September, 2002 addressed on the matter by the company to KAYODE SOFOLA, Esq, S.A.N., as Counsel on record for PIDRELA and a copy of which letter is EXHIBIT “C” hereto.
7. That as PEDRELLA’S original claim, in suit No.ID/1320/08 is for US$8,316,278.00 then reckoned to be equivalent in value to N716, 919,908.00 and the lower Court’s judgment is for only N157million, one, would ordinarily have expected that after the lower Court’s judgment and in absence of any application for a stay of proceedings for the recovery of the claimed balance of over N550 million, PIDRELA would have continued with proceedings in the lower Court for the recovery of that balance, but up till present no such steps have been take.
14. That it therefore came to me as a “bolt from the blue” when I got to know that my Chambers had been served on the 28th day of January, 2009 with a Motion on Notice dated as far back as 8th September, 2008, and this, at a time when my late wife of 45 years happily married life, had fallen into serious ill-health and I have had to be taking her to three(3) different Hospital in Lagos, one after the other, and be visiting her there constantly until she eventually died on the 7th of January, 2009, after which date I had to take in hand preparations for her funeral.
15. That it was in the midst of all the foregoing that the Hearing Notice for the Motion along with, the Motion itself were served together on my Chambers at a time when I was no longer in position to be engaged fully in personal participation in the day-to-day work in the Chambers.
16. That out of all due respect for this Honourable Court, I decided not merely to write a letter to the Court explaining why I could not appear on the 10th of February, 2007, and humbly requesting for an adjournment of the matter, but decided instead to instruct C.O. OMOLABI, Solicitor in my Chambers, to appear before this Honourable Court on the date so as to explain my domestic circumstances with a view to obtaining an adjournment of hearing of the Motion to enable me get prepared and filed a Counter-Affidavit to the Motion seeking a dismissal of the appeal for want of diligent prosecution.
17. That the said C.O. Omolabi later reported to me in Chambers on what transpired in this Honourable Court on the 10th of February, 2009 when Counsel for the Applicant was heard on the Motion along with M.A.O. OKULAJA, Esq., S.A.N. purporting to act for the Third Parties who have never previously appeared or participated at all in these proceedings nor sought the leave of this Honourable Court to be heard as interested Third, parties, and in the absence of any Counter-Affidavit from our side he (Omolabi) was in no position to make any meaningful reply and also as I had not instructed him to reply for on my behalf in my inevitable absence from Court.
18. That in the light of this Honourable Court’s adjournment of Ruling on the Motion on the 25th of February, 2009 and of the fact that the Service of Songs for my late wife had been fixed by the Church to take place in my residence here in Lagos on Tuesday of 24th of February, 2009 and the Christian Wake Keeping in my residence at Ibokun, my home town in Osun State, on Friday, the 27th of February 2009 and the Funeral Service there on Saturday the 28th, I had to brief Prof. A. B. Kasunmu S.A.N to take matters in hand for me which end I deposed to an Affidavit before a Notary Public”.
The counter affidavits of the two set of respondents are mainly to the effect that there was nothing like negotiation for settlement out of court. Furthermore that the death of Dr. Ajayi’s wife was coincidental and did not cause any delay in relation to compilation of records. Dr. F. Ajayi was the erstwhile counsel representing the applicant. The respondents in their submissions also contended that even if there were negotiations for settlement, it is not a ground to prevent the applicants from pursuing the appeal. Admittedly and it is indeed trite law that the fact that there were negotiations for settlement out of court is not a good reason to stop the applicant from pursuing its appeal. See the cases of Moukarim v. Agbaje (1982) 11 SC 122 at 126 and Ikenta Best (Nig) Ltd v. Att. Gen. Rivers State (2008) 6 NWLR (Pt. 1084) 612. On this score, I am in agreement with the submissions of the two sets of respondents.
The respondents further contended that the death of the wife of Dr. F. Ajayi SAN erstwhile counsel representing the applicant was coincidental and can not justify the delay in transmitting the record. The death of Dr. Ajayi’s wife did not occur within the period prescribed by law for the compilation and transmission of record. The death however cannot be said not to have an effect however minimal on the tempo of the appeal. The earlier dismissal of the appeal was based on failure to compile and transmit record of appeal. The applicant has now compiled record which has been attached to the application, and is also seeking for extension of time to compile and transmit record of appeal. The court will obviously not close its eyes to the compiled record attached, in considering the application. See U.B.A V. Nwora (1978) 11-12 SC, 1 Buhari v. Obasanjo (2003) 15 NWLR (Pt. 843) 236 at 256-257. The appeal was dismissed on 25th February, 2009 and the present application was filed same day on 25th February 2009.
In view of the foregoing paragraph, interest of justice demands that the appeal be restored, so that the appeal can be determined on its merits. As for prayer 4, the order for stay of execution was discharged in the consequential orders made in the ruling dated 25th February 2009, dismissing the appeal. The order for stay of execution having been discharged stands discharged at best the applicant can only file a fresh application for the stay of execution. Consequently, prayers 1, 2 and 3 are hereby granted as prayed, while prayer 4 is refused. It is accordingly ordered as follows:
1. The notice of appeal dated 14th July, 2000 and filed on the 18th July 2000 is hereby restored.
2. An order is hereby made extending time within which to compile and transmit record of appeal to today.
3. The record of appeal compiled and marked exhibit ABK3 is deemed properly file and served as the record of appeal for the purpose of hearing this appeal.
The sum of N10, 000 is hereby awarded as costs to each set of respondents against the applicant.
OLUKAYODE ARIWOOLA, J.C.A.: I had the opportunity of reading the draft of the lead ruling of my learned brother, Adamu Jauro, JCA just delivered. I agree entirely with the reasoning therein and the conclusion arrived thereat. I also allow prayers 1, 2 and 3 of the application while prayer 4 is refused.
I abide by the consequential orders in the said lead ruling including the order on costs.
RITA NOSAKHARE PEMU, J.C.A.: I have had the preview of the Ruling just delivered by my learned brother ADAMU JAURO JCA and I absolutely agree with the reasoning and the conclusions. I also subscribe to the consequential order made, including the order as to costs.
The provision of Order 8 Rule 20 of the Court of Appeal Rules 2007 which is in pari materia with Order 8 Rule 20 of the Court of Appeal Rules 2011 is clearly discretionary. I must for purposes of emphasis reproduce same.
Order 8 Rule 20: “An Appellant whose appeal has been dismissed under this Rule may apply by Notice of Motion that his or the appeal be restored and any such application may be made to the Court who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit” (Underlined for emphasis).
The word “MAY” appears four times in these provisions. It is in exercise of its judicious and judicial functions that the Court wields its discretion; and in exercising same, it must always have at the back of its mind the doing of “JUSTICE” in every matter. Afterall, this is the primary function of the Courts!
The provisions, I dare say is flexible. Howbeit, an appeal cannot be restored under this provision where there is intervention of a third party. See DANGARDI V. JIBRIL 1997, 4 NWLR Pt. 501 at 590, RMB LTD V. UTC LTD, 2007. 3 NWLR Pt. 1021 at 375.
If a Court is satisfied that sufficient reasons for the delay have been exhibited by the Applicant (as in this present situation), it will exercise its discretion in his favour. See NATIONAL INLAND WATERWAYS AUTHORITY V. SHELL PETROLEUM DPC. 2006. 5-6 S.C. pt. 1 page 172.
Appearances
Prof. A. B. Kasunmu SAN
Mr. A. B. KasunmuFor Appellant
AND
Mr. E. D. Onyeke
V. A. Adedipe Esq
Mrs. G. Omole
Mr. M.A.O. Okulaja SAN
O.A. Alalade Esq
Mr. Olatunji Oduntan EsqFor Respondent
