IN RE: APPLICATION OF OLUYEMISI OLUFUNMILOLA JAIYEOLA v. MRS. LOVETH EMOKPAE (2022)

IN RE: APPLICATION OF OLUYEMISI OLUFUNMILOLA JAIYEOLA v. MRS. LOVETH EMOKPAE

(2022)LCN/16910(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/IB/M.280/2018(R)

Before Our Lordships:

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. MR. GABIREL S. OLANIYAN – APPELLANT 2. MRS. MARIAN OMOJOLA OLANIYAN – 2ND APPELANT/APPLICANT AND IN RE: APPLICATION OF OLUYEMISI OLUFUNMILOLA JAIYEOLA – 2ND APPLICANT APPELANT(S)

And

MRS. LOVETH EMOKPAE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON WHEN AN ORDER FOR STAY OF EXECUTION OF JUDGMENT PENDING APPEAL IS GRANTABLE

As for the Appellants/Applicants’ prayer for an order staying the execution of the judgment of the lower Court pending determination of this application, an order for stay of execution of judgment pending appeal is only grantable where there is a pending valid appeal. See DICKSON OGUNSEINDE VIRYA FARMS LTD v SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710(SC), per Ogunbiyi, JSC at pages 11 – 12, paras. D – A and ORURUO v UGWU (2006) LPELR-5846(CA), per Galadima, JCA (as he then was) at pages 3 – 4, paras. C – E. PER MOHAMMED, J.C.A.

THE IMPLICATION OF WHERE A JUDGEMENT HAS BEEN EXECUTED

To my mind, where a judgment had been executed, it means that the fruit of the judgment had been eaten by the judgment creditor or winner. So, it had become a completed act. Then, what again is left in it to be stayed? It is akin to an application seeking for an order of injunction, be it interim, interlocutory or perpetual, to restrain the carrying out of an already completed act, which is not grantable.
See also YAJI & ORS v WOMBO (2021) LPELR-54859(CA), Jombo-Ofo, JCA at page 24, paras. B – C and UNION BANK v EDAMKUE & ANOR (2003) LPELR-6190(CA), per Akintan, JCA (as he then was) at pages 25 – 27, paras. D – A. PER MOHAMMED, J.C.A.

CONDITIONS THAT MUST BE FULFILLED WHERE A PARTY APPLIES THAT HIS MATTER STRUCK OUT OR DISMISSED FOR WANT OF DILIGENT PROSECUTION MUST BE RELISTED

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgement): The Applicants brought this application filed on 22nd June, 2018, pursuant to Order 4 Rules 3, 4 and 6; Order 6 Rules 1 and 12; Order 15 Rule 2 of the Court of Appeal Rules, 2016, Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under the inherent jurisdiction of this Court. The Applicants prayed this Court for the following Orders:
1. An order extending time within which to apply to set aside the ruling of this Honourable Court delivered on 31st May, 2016 dismissing the Appeal No. CA/IB/143/2010 between Gabriel S. Olaniyan & Anor. v Mrs. Loveth Emokpae.
2. An order restoring/relisting to the Cause List the appeal against the decision of the High Court of Ogun State Otta Judicial Division Coram: O. A. Onafowokan J. delivered on 7th October, 2005 in Suit No. HCT/191/1999 between Gabriel S. Olaniyan & Anor. v Mrs. Loveth Emokpae.
3. An order substituting and/or replacing the deceased 1st Appellant with his daughter, Mrs. Oluyemisi Olufunmilola Jaiyeola.
4. An order suspending or staying the enforcement or further execution of the judgment of the High Court of Ogun State, High Court of Ogun State Otta Judicial Division Coram: O. A. Onafowokan J. delivered on 7th October, 2005 in Suit No. HCT/191/1999 between Gabriel S. Olaniyan & Anor v Mrs. Loveth Emokpae pending the determination of the application to relist and restore the Appeal herein to the Cause List.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The grounds of the application as contained in the motion paper were:
(a) The High Court of Ogun State, Ota Judicial Division had given judgment against the deceased 1st Appellant and 2nd Appellant/1st Applicant herein on 7th October, 2005.
(b) In a bid to diligently prosecute the appeal, the deceased 1st Appellant and the 2nd Appellant/1st Applicant filed a Notice of Appeal on 30th October, 2009 containing Six Grounds of Appeal against the said judgment in CA/IB/143/2010.
(c) On the 21st October, 2009, this Honourable Court granted an application for extension of time within which the 1st Appellant and the 2nd Appellant/1st Applicant may appeal against the decision of the lower Court.
(d) Sometime in 2011, Mr. Olusegun Jaiyeola of Olusegun Jaiyeola Chambers who had been representing the Appellants died.
(e) The 1st Appellant, Mr. Gabriel Sunday Olaniyan also died on 8th June, 2011.
(f) The Firm of Chief Dele Awoniyi took over the Appeal to represent the 1st Appellant and 2nd Appellant/1st Applicant but unfortunately the Counsel also died on 6th January, 2015.
(g) The appeal was dismissed in the absence of the parties and their Counsel on 31st May, 2016 for lack of diligent prosecution.
(h) The deceased 1st Appellant as the 2nd Appellant’s father was in charge of the prosecution of the appeal and had maintained contact with the Lawyers handling the Appeal at all times material to this case.
(i) The 2nd Appellant/1st Applicant was not aware of the dismissal until the Respondent attempted to levy execution on the property subject of this Appeal at No. 28, Igbeyinadun Street, Ojodu Abiodun Ogun State a few weeks ago.
(j) The 2nd Applicant who had travelled out of Lagos was not aware of the dismissal of the appeal and the attempt to levy execution until she was informed by the 1st Applicant on 19th June, 2018.

(k) By the time the Applicants became aware, the time within which to apply to set aside the order of 31st May, 2016 had expired.
(l) The non-appearance of Counsel handling the appeal and the parties was neither deliberate not intentional but due to the circumstance of the demise of first two Counsel and the 1st Appellant.
(m) The 2nd Applicant, Oluyemisi Olufunmilola wishes to be substituted for her father, the deceased 1st Appellant.
(n) The appeal survives the deceased 1st Appellant.

An affidavit of 37 paragraphs deposed to by the 2nd Applicant, Oluyemisi Olufunmilola Jaiyeola was filed, attached to which were 11 exhibits. As the Respondent opposed the application with a Counter-Affidavit of 17 paragraphs which she deposed on 9th October, 2018, which was responded to with a 13 paragraph Further and Better Affidavit by the Applicants filed on 12th February, 2019, this Court ordered the parties to file written address in line with the 2016 Rules applicable at that time. The Applicants’ Written Address was filed on 7th March, 2022, while that of the Respondent was filed on the 10th of March, 2022. The Applicants also filed a Reply on Points of Law on the 21st of March, 2022.

In the Applicants’ Written Address, they raised the sole issue of:
Whether having regard to all the circumstances of this case, the Applicants are entitled to the prayers sought.

On her part, the Respondent raised the issue of:
Whether the Court can grant the 2nd Appellant/Applicant and the Applicants’ application built on larches and acquiescence.

The sole issue for determination is whether having regard to the circumstances this application can be granted.

In his submissions in support of the application, learned Counsel for the Applicants, F. D. Oloruntoba Esq., cited Order 6 Rule 9, 10 and 12 and Order 15 Rule 2 of the Court of Appeal Rules, 2016 and submitted that the Rules allows for an application to set aside the Ruling of this Court dated 31st May, 2016 and enlarge time provided by the Rules for doing anything or taking any step, and for the substitution of any dead party, respectively. He pointed out that Exhibit 11 shows that the appeal was dismissed suo motu by this Court on 31st May, 2016 for the Respondent’s inability to furnish the Court with the personal addresses of the Appellants at the time. Counsel submitted that after the demise of the previous two Counsel representing the Appellants and subsequent demise of the 1st Appellant and the inability of the Bailiff to serve hearing notice, the Applicants did not become aware of the order of dismissal until 19th June, 2018. Counsel added that there were tenants on the property the subject of the appeal who could bring information to the Applicants if at all a Court process such as hearing notice was pasted on the property. He referred the Court to paragraphs 23 and 27 of the affidavit in support.

Learned Counsel cited and relied on the cases of JIDEONWO v CHUKWUMA (2000) 1 NWLR (Pt. 641) 397 at 404, paras. E – G, on the differences between dismissal of an appeal by the Court suo motu and dismissal of an appeal on application and the consequences of same. He also cited and relied on the cases of MMUODILI v ONWUBA (2021) 14 NWLR (Pt. 1796) 211 at 232 – 233, paras. E – B; S & D CONSTRUCTION CO. LTD v AYOKU & ANOR (2011) LPELR-2965(SC), on the conditions for the relisting of matters struck out for want of diligent prosecution. He argued that the Applicants have made out a case sufficient for the exercise of the Court’s discretion in their favour.

On the prayer for a stay of the execution of the judgment, learned Counsel relied on the cases of VASWANI TRADING CO. v SAVALAKH COMPANY LTD (1972) 7 NSCC 692 and DANGYANG v EMMANUEL LADAPO & CO. (NIG.) LTD (1993) 4 NWLR (Pt. 286) 226, as well as paragraphs 5 – 31 of the supporting affidavit. He submitted that the Applicants have met the conditions set out in a long line of authorities. He urged this Court to grant the application.

Arguing per contra, learned Counsel for the Respondent, Obukohwo Odogun Esq., pointed out that a similar application was brought in appeal CA/IB/143/2010 dated 18th March, 2013 which was annexed as Exhibit 5 to the application before the Court. Counsel submitted that this application has not complied with the rules of this Court as it was not filed within the 14 days stipulated. He also urged the Court to refuse the second prayer as it has no merit. He argued that the Appellants/Applicants have acquiesced in their conduct and this is against Order 4 Rule 6(1)(a) and they have advanced no arguments as to any misdirection, error or any other ground that can make this Court to revisit its decision of 31st May, 2016. He added that it was the antecedents of the Applicants that made the Court to dismiss the appeal no. CA//IB/143/2010.

Learned Counsel submitted that the enforcement of the judgment of the lower Court in HCT/199/1999 delivered on 7th October, 2005 was carried out by the Court’s Sheriffs on 10th May, 2018 and this application is an afterthought. Learned Counsel also referred to paragraphs 10, 11 and 14 of the Respondent’s Counter Affidavit and submitted that the 2nd Applicant had soiled her hands by collecting rent on the property over a period. He pointed out that the 2nd Applicant had opportunity to respond to this but she was evasive in her further and better affidavit and admitted visiting the property after possession was handed over to the Respondent.

On the Applicant’s fourth prayer for stay of further enforcement, learned Counsel submitted that the judgment of the lower Court had already been enforced and should not be revisited by this Court as it will occasion injustice on the Respondent. He argued that the Applicants were tardy and mischievous in bringing this application. He added that this application is an afterthought and an impediment to the wheel of justice. He urged the Court to refuse the application.

In his reply on Point of Law, learned Counsel for the Applicants referred the Court to the cases of GENERAL ELECTRIC CO. v AKANDE (2012) 16 NWLR (Pt. 1327) 593 and OBIORA v OSELE (1989) 1 NWLR (Pt. 97) 279, where he said applications of this nature were granted. On the Respondent’s argument over larches and acquiescence, he argued that the lapse of time must be coupled with the existence of fraud to make it inequitable for the Court to refuse the application, and the Respondent had not complained of fraud. He cited KAIYAOJA v EGUNLA (1974) 12 SC 49, KAYODE v ODUTOLA (2001) 11 NWLR (Pt. 725) 659, OKEREKE v NWANKWO (2003) 9 NWLR (Pt. 826) 592.

On the Respondent’s argument over a previous similar application in Exhibit 10, learned Counsel for the Applicants submitted that Exhibit 10 dated 18th March, 2013 goes to the root of the Applicants’ exercise of right of appeal while the instant application seeks to protect the Applicants’ right to fair hearing and adjudication as enshrined in Section 36 and 241(1) of the 1999 Constitution.

Learned Counsel argued that contrary to the argument of the Respondent, the Appellant’s Brief of Argument in Appeal No. CA/I/143/2010 was done in time prior to the death of the two previous Counsel to the Appellant and the death of the original Appellant by virtue of Exhibit 6. He further argued that prayer 1 complies with Order 6 Rules 9(1)(2) and 10 of the Court of Appeal Rules, 2021 and that the Applicant could not have collected rent when the Respondent was in possession of the property. He added that this application is not an afterthought and not mischievous as argued by the Respondent. He urged the Court to grant the Application.

I have considered the submissions of the parties. The Appellants/Applicants are by this application seeking for extension of time within which to apply to set aside the Ruling of this Court made on 31st May, 2016 dismissing their appeal and for order restoring the said appeal to the Cause List, as well as order substituting the deceased 1st Appellant with his daughter, Mrs. Oluyemisi Olufunmilola Jaiyeola and for a stay of further execution of the judgment of the trial Court delivered on 7th October, 2015 in Suit No. HCT/191/1999 pending the determination of this application.

By Order 6 Rule 11 of the Court of Appeal Rules, 2016 which is in pari materia with Order 6 Rule 10 of the extant Court of Appeal Rules, 2021, “an application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.”
From the above provision, it is easily discernible that an application like that brought by the Applicants herein, which seeks to set aside an earlier order dismissing an appeal for lack of diligent prosecution and for relisting of same, is not granted as a matter of course. An applicant who seeks the relisting of a struck out or dismissed appeal for lack of diligent prosecution, must support his application with cogent and convincing materials before the Court can grant such application. For this purpose, the appellate Courts have in several decided cases stated the basic principles to be considered in such type of applications. The Supreme Court in DOHERTY v DOHERTY (1964) 1 All NLR 299, stated these principles to include: (i) the reasons for the Applicant’s failure to appear before the Court when the case was heard; (ii) whether there has been undue delay in making the application so as to prejudice the other party; (iii) whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case; and (iv) whether the Applicant’s case is manifestly unsupportable. See also MMUODILI & ORS v ONWUBA & ORS (2020) LPELR-55917 (SC), per Okoro, JSC at pages 23 – 25, paras. E – E and YONWUREN v MODERN SIGNS (NIG.) LTD (1985) LPELR-3529 (SC), per Kazeem, JSC at pages 18 – 20, para. E.
From the foregoing, it is clear that an applicant, such as the Applicants herein, seeking for the relisting of an appeal dismissed for want of diligent prosecution, must present in his supporting affidavit to the application, cogent and convincing materials which will move the Court to grant the application. Thus, in NIGERIA NATIONAL SUPPLY CO. LTD. v ESTABLISHMENT SIMA OF VADUZ (1990) 7 NWLR (Pt. 164) 526, the Supreme Court, per Belgore, JSC (as he then was) held that:
“The facts contained in such affidavits will sway the Judge one way or the other in deciding where the justice of the case demands his discretion should go. Thus in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a Court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion.”

In support of this application, the Applicants have specifically deposed in paragraphs 8 – 25 of the supporting affidavit of the 2nd Applicant, as follows:
8. On the 21st October, 2009, this Honourable Court granted an application for extension of time within which the Appellants/Applicants may appeal against the decision of the lower Court. A copy of the record of proceedings of 21st October, 2009 is attached herein and marked as Exhibit 5.
9. The 1st Appellant, my father was in Court on 21st October, 2009, when the application to change Counsel from Alhaji G. K. Quadri of Kolawole Quadri & Co. to Mr. Olusegun Jaiyeola of Olusegun Jaiyeola Chambers was also granted. The record of proceedings of that day is embodied in Exhibit 5 referred to above.
10. The 1st Appellant, my father had been in charge of the prosecution of the appeal and had maintained contact with the lawyers handling the appeal at all times to this case.
11. Sometime in 2011, Mr. Olusegun Jaiyeola of Olusegun Jaiyeola Chambers who had been representing the Appellants died.
12. The 1st Appellant, Mr. Gabriel Sunday Olaniyan who is my father also died on 8th June, 2011. A copy of the death certificate is attached herein and marked as Exhibit 6.
13. The Appellant’s/1st Applicant’s Appellant’s Brief of Argument was settled and filed on 28th January, 2011 by Chief Dele Awoniyi of the firm of Chief Dele Awoniyi & Co. together with an application for extension of time. A copy of the Appellants’ Brief of Argument is attached herein and marked as Exhibit 7.
14. On 17th April, 2012, in the absence of the Respondent and her Counsel, the application of Chief Dele Awoniyi of the Firm of Chief Dele Awoniyi & Co., for extension of time within which the Appellants/Applicants may file the Appellants’ Brief of Argument and deem the Appellants’ Brief as properly filed and served was granted. A copy of the record of proceedings of 17th April, 2012 is attached herein and marked as Exhibit 8.
15. The Respondent joined issues and also filed her own Brief of Argument on 1st November, 2012. A copy of the Brief is attached and marked as Exhibit 9.
16. Subsequent to 17th April, 2012, an application was made to this Honourable Court to substitute me with my father which was filed in 2013 but could not be moved before the demise of Chief Dele Awoniyi. A file copy of the said application to substitute me with my father and amend the Notice of Appeal dated and filed on 21st May, 2013 is attached herein and marked as Exhibit 10.
17. In the meantime, Chief Dele Awoniyi from Firm of Chief Dele Awoniyi & Co. who was the Counsel on record that took over from Mr. Olusegun Jaiyeola of Olusegun Jaiyeola Chambers and who indeed moved the application to regularize the Appellants’ Brief of Argument on 17th April, 2012 most unfortunately died on 6th January, 2015.
18. The Bailiff of this Honourable Court had reported on 13th April, 2016 and 20th April, 2016 that the Appellants’ Counsel was dead while the Appellants’ Address could not be traced and could not confirm service either on the Appellants or their Counsel respectively.
19. The Bailiff however confirmed service of the Hearing Notice on Respondent’s Counsel on 15th April, 2016 and 20th May, 2016 respectively.
20. When the Appeal came up on 31st May, 2016, the Appeal was dismissed in the absence of the parties and their Counsel for lack of diligent prosecution. The Record of Proceedings of 31st May, 2016 is attached herein and marked as Exhibit 11.
21. As at 31st May, 2016 when the Appeal came up, Briefs of Argument have already been exchanged and it was for the Respondent to furnish this Honourable Court with the address of the Appellants so that they could be served personally in respect of the Appeal NO. CA/IB/143/2010.
22. The 2nd Appellant/1st Applicant, my stepmother and I were not aware of the dismissal until the Respondent attempted to levy execution on the property of my father subject of the Appeal No. CA/IB/143/2010 located at No. 28, Igbeyinadun Street, Ojodu Abiodun Ogun State a few weeks ago.
23. I had travelled to Lagos and was not aware of the dismissal of the appeal and the attempt to levy execution until I was informed by the Applicant my stepmother on 19th June, 2018.
24. The 2nd Applicant could not establish contact with the Counsel handling the case for the Appellants in Appeal No. CA/IB/143/2010 being always out of the country most times and come in intermittently in the period.
25. The non-appearance of Counsel handling the appeal and the parties was neither deliberate not intentional but due to the circumstance of the demise of the two Counsel and the 1st Appellant with not information about the appeal made available to me at the time.
26. By the time I became aware, the time within which to apply to set aside the Order of 31st May, 2016 had expired.
27. There are tenants on the property subject of this Appeal at No. 28, Igbeyinadun Street, Ojodu Abiodun Ogun State who could bring to the attention of the Applicants the pendency of this Appeal is hearing notice had been pasted on the property.
28. The Applicants are desirous of prosecuting the appeal diligently and have absolutely no reason to be tardy in the prosecution of the Appeal.

In response to the above depositions of the Appellants/Applicants, the Respondent had deposed in paragraphs 4 – 16 of her Counter-Affidavit as follows:
4. That after the appeal with No. CA/IB/143/2010 was dismissed by this Court on 31st May, 2016, I waited diligently to await any development from the Appellants.
5. That since there was none, I instructed my solicitors to take necessary steps to enforce the judgment of the High Court if Ogun State, Otta Division delivered by Honourable Justice O. A. Onafowokan delivered 7th October, 2005 referred to as Exhibit 1 in the 2nd Applicant’s application.
6. That I hereby annex a copy of the letter written to the lower Court registry marked Exhibit LE1.
7. That I am aware and was informed of every step taken to process the enforcement, which included several visits to the High Court Otta, Ogun State Police Headquarters, Elewerem, Abeokuta and finally the Ojodu Abiodun Division of Ogun State Police Command thereafter the lower Court issued the warrant of possession a year after my solicitor’s application after necessary official checks.
8. That I hereby annex a certified copy of the Warrant of Possession for enforcement of the lower Court’s judgment marked Exhibit LE2.
9. That it is very mischievous of the 2nd Applicant to allege that an attempt was made, else, who stopped us and she was there at the tail end of the exercise, but stood on the main road, everyone including the tenants at home saw her after all.
10. That the property 28, Igbeinadun Ojodu, Ogun State was handed over to me on 10th May, 2018 about 10.30 am in the presence of my representatives and the Policemen led by Inspector Gabriel Omotayo of Abiodun Ojodu Division and the tenants at home.
11. I hereby annex Exhibit LE3 a certified copies and photographs of the handover of the said property to me pursuant to the execution of the said judgment.
12. That it is strange for the 2nd Applicant to make several excuses stated in her affidavit to this application, when in paragraph 16 of same, the Exhibit 10, frontloaded were copies of an earlier application by her filed 18th March, 2013, to substitute and replace her late father the 1st Appellant according to her, but did nothing after that, even after the Appeal was dismissed.
13. I do not personally know the 2nd Appellant, or her solicitor in the appeal that was dismissed, I could not have promised him or anyone to provide an address I do not know.
14. What is not strange is the fact that the 2nd Appellant collected rent for the property accessed (sic) at about a total of N700,000.00 (Seven Hundred Thousand Naira) per annum before and continued to same from 31st May, 2016 when this Court dismissed the appeal to May 10th, 2018 when the property was legally mine, in the absence of any appeal, but has not surrendered the money, yet seeks the equity of justice from this Court.
15. That I was informed by my Solicitors ObuKohwo Odogun Esq., and Ephriam Oke Okpomo Esq., that further hearing of this appeal after all these developments amounts to an academic exercise and wasting the time of this Honorable Court.
16. That it is in the interest of justice to dismiss this application with cost, not less than one million naira because it is a clear attempt to continue to deny me of the use of my property by the 2nd Applicant.

From the state of affidavit evidence of the parties as stated above, it seems to me that despite the death of the 1st Appellant and his substitution and the death of Counsel for the Appellants as stated above, the facts as presented by the Appellants show a glaring lack of diligence on their part in pursuing the appeal. From the facts deposed to by the parties, it is evident that:
(i) this Court granted the Appellants extension of time to appeal the judgment of the lower Court on the 21st of October, 2009 (See Exhibit 5 attached to the Appellants’ supporting affidavit).
(ii) The Appellants’ first Counsel, Olusegun Jaiyeola Esq died almost two years after in 2011 and the Appellant got a new Counsel, Chief Dele Awoniyi who filed Appellants’ Brief of Argument on 28th January, 2011 and regularized same on 17th April, 2012 on which date this Court deemed the Appellants’ Brief of Argument as properly filed and served. (See Exhibit 8).
(iii) The Respondent joined duly issues with the Appellants by filing Respondent’s Brief of Argument on 1st November, 2012. (See Exhibit 9).
(iv) The said Chief Dele Awoniyi, the Counsel for the Appellants filed application on 21st May, 2013 to substitute the 1st Appellant, Mr. Gabriel Sunday Olaniyan who was deceased and to amend the Notice of Appeal, but same was not moved until the Appellants’ Counsel Chief Dele Awoniyi died almost one and a half years after on 6th January, 2015.
(v) In other words, the 2nd Applicant who was sought to be substituted was very much aware of the appeal since 21st of May, 2013 when she was she sought to substitute her dead father, but took no steps to ensure diligent prosecution of the appeal until it was dismissed three years after on 31st May, 2016. (See Exhibit 10).
(vi) Even when this Court dismissed the appeal for lack of diligent prosecution almost one and a half years after on 31st May, 2016, the Appellants went to sleep and still took no steps to move the application for substitution and prosecute the appeal until the judgment of the lower was executed two years after and the property was handed over to the Respondent on the 10th of May, 2018. (See Exhibits LE1, LE2 and LE3 attached to the Respondent’s Counter-Affidavit which are the Letter of Application for enforcement of the judgment made by the Respondent to the lower Court dated 29th March, 2017; the Writ of Possession issued by the Lower Court dated 13th April, 2017; and the Report of Execution of Writ of Possession and Photographs of Handover of Possession).

From the above therefore, it is clear that even after the death of the 1st Appellant and Counsel for the Appellants, the Applicants, especially the 2nd Applicant who had earlier sought to substitute the deceased 1st Appellant, took no diligent steps to ensure the prosecution of the appeal until it was dismissed by this Court for lack of diligent prosecution, and even after the appeal was dismissed, the 2nd Applicant who was aware of the appeal having filed her application for substitution three years earlier, again took no steps until the judgment of the lower Court was enforced and the property was handed over to the Respondent.

It is instructive that in the Applicants’ further and better affidavit and reply on points of law, the Applicants have tried to argue that the judgment of the lower Court was yet to be executed. But this denial, which is a mere ipse dixit of the Applicants, cannot fly in view of Exhibits LE1, LE2 and LE3 attached to the Respondent’s counter-affidavit which are documentary evidence showing the execution of the said judgment. The judgment of the lower Court having been executed since 2018, more than two years after the appeal was dismissed by this Court, and the Appellants/Applicants having failed to apply to set aside the order of dismissal of the appeal within time prescribed until the judgment was duly executed, I am of the considered view that the grant of this application seeking to set aside the earlier order of dismissal of the appeal made four years ago will prejudice and embarrass the Respondent who had been enjoying the fruits of his judgment for almost four years now. See: DOHERTY v DOHERTY (supra), MMUODILI & ORS v ONWUBA & ORS (supra) and YONWUREN v MODERN SIGNS (NIG.) LTD (supra).

The Applicants argument over fair hearing is also misconceived, since the Appellants had all the opportunities to pursue the appeal but had not utilized same. See FEDERAL HOUSING AUTHORITY v KALEJAIYE (2010) LPELR-1267(SC), per Onnoghen, JSC (as he then was) at page 27 paras. A – D and NWOKOCHA v A.G. OF IMO STATE (2016) LPELR-40077(SC), Kekere-Ekun, JSC at page 65, paras. D – F. The Applicants have therefore not presented cogent and convincing reasons for this Court to set aside its earlier order dismissing this appeal for lack of diligent prosecution. I so hold.

As for the Appellants/Applicants’ prayer for an order staying the execution of the judgment of the lower Court pending determination of this application, an order for stay of execution of judgment pending appeal is only grantable where there is a pending valid appeal. See DICKSON OGUNSEINDE VIRYA FARMS LTD v SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710(SC), per Ogunbiyi, JSC at pages 11 – 12, paras. D – A and ORURUO v UGWU (2006) LPELR-5846(CA), per Galadima, JCA (as he then was) at pages 3 – 4, paras. C – E. I have already found above that the Appellant has failed to present cogent and convincing reasons for this Court to set aside its earlier order dismissing the appeal for lack of diligent prosecution. In addition, this Court cannot grant the Applicant’s prayer for a stay of execution of the judgment of the lower Court, since the execution of the said judgment had been completed four years ago. It is settled that Courts do not grant a stay of execution of judgments that have already been executed. In INEC v MBONU (2018) LPELR-44018(CA), this Court, per Yakubu, JCA reiterated this position when he held at pages 25 – 26, paras. F – B, that:
To my mind, where a judgment had been executed, it means that the fruit of the judgment had been eaten by the judgment creditor or winner. So, it had become a completed act. Then, what again is left in it to be stayed? It is akin to an application seeking for an order of injunction, be it interim, interlocutory or perpetual, to restrain the carrying out of an already completed act, which is not grantable.
See also YAJI & ORS v WOMBO (2021) LPELR-54859(CA), Jombo-Ofo, JCA at page 24, paras. B – C and UNION BANK v EDAMKUE & ANOR (2003) LPELR-6190(CA), per Akintan, JCA (as he then was) at pages 25 – 27, paras. D – A.
For all the above reasons, I hereby resolve the sole issue in this application against the Applicants and hold that considering the circumstances of this case, this application cannot be granted. Accordingly, this application is hereby dismissed for lack of merit. Cost of N50,000 (Fifty Thousand Naira Only) is hereby awarded in favour of the Respondent.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment delivered by my learned brother ABBA BELLO MOHAMMED, JCA and I agree with the conclusion that the appeal has no merit and should be dismissed. The Rules of Court are the guiding watchdogs of proceedings and there cannot be any usage either indirectly, subtly or surreptitiously that will expect acceptable recognition or a legal approval, it must be direct and straight diving and in accordance with the laid down rules and procedure of the Court.

In the case at hand, the relevant applicable law is Order 6 Rule 11 of the Court of Appeal Rules, 2016 which is in pari materia with Order 6 Rule 10 of the extant Court of Appeal Rules, 2021 and it is now settled law that a party applying that his matter struck out or dismissed for want of diligent prosecution be relisted must fulfil the following conditions: a.) There must be good reasons for being absent at the hearing; b.) That there has not been undue delay in bringing the application as to prejudice the Respondent; c.) That the Respondent will not be prejudiced, embarrassed if the order for re-hearing is made; d.) That the Applicant’s case is not manifestly unsupportable; e.) That the Applicant’s conduct throughout the case is deserving of sympathetic consideration and all the aforementioned ought to be resolved in favour of the application of the applicant before the judgment should be set aside. It is not enough that some of them can be resolved. See S & D CONSTRUCTION CO. LTD V. AYOKU & ANOR (2011) LPELR – 2965(SC), ATIKU V. YOLA LOCAL GOVERNMENT (2003) FWLR (PT. 177) 837, SHITTU V. PEUGEOT AUTOMOBILE NIGERIA LTD (2005) ALL FWLR (PT. 253) 682, SANUSI V. AYOOLA (1992) 9 NWLR (PT. 265) 275, NIGERIAN NATIONAL SUPPLY COMPANY V. ESTABLISHMENT SIMA OF VADUZ (1990) 21 NSCC (PT.3) 526 and BANNA V. TELEPOWER (NIG) LIMITED (2006) ALL FWLR (PT. 334) 1813.

From the state of affidavit evidence of the parties, it is glaring that there is lack of diligence on the part of the Appellants in pursuing the appeal because after the death of the 1st Appellant and Counsel for the Appellants, the 2nd Appellant who was aware of the appeal took no further step in pursuing the appeal until the judgment of the lower Court was enforced and the property was handed over to the Respondent.

In conclusion, I agree with the reasoning and conclusion of my learned brother, and I therefore abide by the consequential orders contained in the said lead judgment including the order as to costs.

FOLASADE AYODEJI OJO, J.C.A.: I had the benefit of reading in advance the lead ruling delivered by my learned brother, ABBA BELLO MOHAMMED, JCA. My learned brother has admirably considered and resolved the germane issues in the application.

It has to be noted that the grant of an application of this nature is entirely discretionary which must be exercised judicially and judiciously. The period from 31st of May, 2016 when this Court dismissed Appeal No. CA/IB/143/2010 to 22nd of June, 2018 when this application was filed is a period of about 752 days. That is more than two years. There has been an inordinate delay on the part of the Applicant and there is no adequate and acceptable explanation by him to justify the exercise of the Court’s discretion in his favour. In other words, the tardiness in prosecuting the appeal has not been explained.

It is trite that he who comes to equity must come with clean hand. And delay, they say, defeats equity because equity aids the vigilant and not the indolent. The law helps the vigilant and not the one who sleeps on his right. See OJO VS. ADESIDA (2020) 10 NWLR (PT. 1732) 347, NIGERIAN LABORATORY CORPORATION VS. PACIFIC MERCHANT BANK LIMITED (2012) 15 NWLR (PT. 1732) 347, IKENTA BEST NIGERIA LIMITED VS. ATTORNEY-GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 612.
The Applicant who seeks equitable reliefs from this Court was not vigilant over her right to diligently prosecute the appeal. This Court cannot exercise its jurisdiction to resurrect and resuscitate a wasted right.

It is for the above and the more comprehensive reasons in the lead ruling that I also dismiss the application as being bereft of merit. I abide by the consequential order as to cost.