UNITY BANK PLC v. IGALA CONSTRUCTION CO. LTD (2022)

UNITY BANK PLC v. IGALA CONSTRUCTION CO. LTD

(2022)LCN/16591(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/ABJ/PRE/ROA/CV/1005/M1/2021(R)

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

UNITY BANK PLC APPELANT(S)

And

IGALA CONSTRUCTION COMPANY LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE RIGHT OF A LITIGANT IN HIS CHOICE OF COUNSEL

It has been held and rightly too, that a litigant is free and has unfettered right in the choice of counsel, and that choice once made, the counsel chosen takes full responsibility and authority of the case in the way and manner he conducts the same. His professional decision cannot be taken as the mistake of counsel just because the method taken in conducting the case failed to bear the required results. As stated earlier there was no mistake of counsel for which the applicant can be said to have been prejudiced. Where facts and circumstances are placed or presented to the Court, it then remains for the Court from those facts and circumstance to exercise its discretion guided by law, justice and common sense. See Waziri vs. Gumel (2012) ALL FWLR (pt. 632) 1660, Emenike vs. PDP (2012) ALL FWLR (pt. 640) 1261, Mba vs. Mba (2019) All FWLR (pt.973) 448 AT 474. Having examined the facts and the circumstance of the case before the Court, I fail to see any cogent, substantial and/or convincing reason capable of influencing the exercise of the Court’s discretion in favor of granting the application. It should be understood that the exercise of the Court’s discretion is exercised judiciously and judicially. For me, it would seem quite outlandish for parties to exercise the option of appeal, and later to come back and to ask for extension of time within which to re-open that which had been laid to rest. There has to be an end to litigation and applicant having failed to show any good cause why this Court should exercise its discretion in favor of granting the application, same is hereby refused. PER BARKA, J.C.A.

WHETHER OR NOT THE TRIAL COUT CAN REVISIT A MOTION WHICH HAS BEEN HEARD AND DETERMINED BY A COURT OF COORDINATE JURISDICTION

Also in Ekeowa vs. Nigerian Cement Co. Nkalagu (2009) 4 NWLR (pt. 1131) 289 AT 302:
“It is wrong for a trial Court to revisit a motion which was heard and determined by a Court of coordinate jurisdiction the orders of which are binding on it. It is only an appellate Court that can revisit the motion” PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgement): The Applicant by way of a motion brought on notice and pursuant to Order 6 Rules 1 (a) (b), 9(1) & 10 of the Court of Appeal Rules, 2021, and under the inherent jurisdiction of the Court, prayed for the following order(s).
i. An order of this Honorable Court for the enlargement of time within which to apply to set aside the judgment of this Court in appeal No. CA/ABJ/PRE/ROA/CV/1005/M1/2021 Between Unity Bank Plc V. Igala Construction Co. Limited made on the 2nd day of August, 2017 striking out the appeal.
ii. An order setting aside the judgment of the Court in appeal no. CA/A/403/2013 between Unity Bank Plc V. Igala Construction Co. Limited made on the 2nd of august, 2017 striking out the appeal.
iii. An order relisting Appeal No. CA/A/409/2013 between Unity Bank Plc V. Igala Construction Co. Limited which was struck out on the 2/8/2017 for hearing on the merit.
iv. An order granting leave to the Appellant to amend the Appellant’s brief of argument.
v. An order deeming the Amended Appellant’s Brief of Argument as properly filed and served.
vi. And for such further Order(s) this Honourable Court may deem fit to make in the circumstance.

The grounds upon which the application is founded are listed as follows:
i. That the Court of appeal Abuja Division delivered its judgment on 2/8/2017 against the Appellant/Applicant in Appeal No. CA/A/409/2013.
ii. That the Court in its judgment of 2/8/2017 struck out the appeal on the ground of proliferation of issues which rendered the appeal incompetent.
iii. That when an appeal is struck out, the Appellant has 14 days within which to apply to Court for the appeal to be relisted. That the 14 days had already elapsed on 17/8/2017.
iv. That the former Counsel handling the matter instead of filing an application to relist the matter, appealed to the Supreme Court.
v. That the Supreme Court on 18/12/2018 dismissed the appeal for want of diligent prosecution.
vi. That the former Counsel to the Appellant/Applicant went back to the Court Appeal seeking leave to appeal in Motion No. CA/A/383/M/2018 filed on 2/5/2019.
vii. The Court of Appeal on 21/5/2020, dismissing the application for leave to appeal.
viii. The same Counsel went back to the Supreme Court challenging the dismissal of leave to appeal.
ix. The Appellant/Applicant not satisfied with the representation of the former Counsel debriefed him and now briefed G. Ofodile Okafor (SAN) of G. Ofodile Okafor (SAN) & Company.
x. On studying the case file, it is our humble opinion that there was no need for the motion in CA/A/409/2018 as there was already pending and competent appeal at the Court of Appeal Abuja.
xi. That the appeal in CA/A/409/2013 was merely struck out and not dismissed and can be relisted with the leave of Court.
xii. That if the matter is relisted, there is need to file an Amended Appellant’s Brief of Argument.
xiii. That the Appellant/Applicant is by the rules of this Court out of time and requires the leave of this Court for the enlargement of time within which to apply to set aside the judgment of this Court, relist the appeal, file and serve an Appellant’s Brief of Argument.
xiv. That the substantive issues in this appeal i.e. whether the judgment of the FCT High Court dated 26/4/2013 is right or wrong have not been dealt with.
xv. That what was struck out or dismissal by the Supreme Court was whether order of this Court dated 2/8/2017 is right or wrong.
xvi. That the Supreme Court can only review the judgment of this Court, if this Court had considered the case on the merit.
xvii. That the Court has the requisite powers to grant this application.

In support of the application is a 40-paragraph affidavit deposed to by one Kingsley C. Amuchuaka, the Zonal Legal Manager Abuja and Central, of the applicant. Also hinged on the application are the following exhibits titled UBP 1 – UBP 10;
i. The judgment of the High Court of the Federal Capital Territory Abuja in suit with No. FCT/HC/CV/1039/2012, between Igala Construction Company Ltd and Unity Bank Plc delivered on the 26th day of April, 2013,
ii. Notice of appeal dated the 23rd day of May, 2013 and filed on the same day.
iii. Judgment of the Court of Appeal in Appeal with No. CA/A/409/2013 between, Unity Bank Plc and Igala Construction Company Ltd delivered on the 2nd day of August 2017.
iv. Notice of appeal to the Supreme Court, between Unity Bank Plc and Igala Construction Company Ltd dated the 9th day of August, 2017, but filed on the 11th day of August, 2017
v. Notice of motion brought by the Unity Bank Plc as applicant and Igala construction Co Ltd, dated the 22nd day of February, 2018 and filed on the same date.
vi. Judgment of the Supreme Court of Nigeria in SC/795/2017 between Unity Bank Plc and Igala Construction Co. Ltd delivered on the 18th of December, 2018
vii. Ruling in appeal with No. CA/A/383/m/2018 between Unity Bank Plc and Igala Construction Co. Ltd delivered on the 21st of May, 2020
viii. Notice of Appeal to the Supreme Court between Unity Bank Plc and Igala Construction Co. Ltd dated the 24th June, 2020 but filed on the 25th day of June, 2020
ix. Ruling of the Apex Court in No. SC.800/2020 delivered on the 12th day of October, 2021 between Unity Bank Plc and Igala Construction Co. Ltd,
x. A notice of change of counsel, titled, Appeal No: SC/CV/800/2020 Formerly Appeal No. CA/A/383/M/2018, Unity Bank Plc vs. Igala Construction Co Ltd & Anor dated the 26th day of November, 2021 addressed to the principal partner, G. Ofodile Okafor (SAN) & Co.

On the same 10th of December, applicant filed a written address and a reply on points of law filed on the 4th of February, 2022. Learned senior counsel transmitted an additional authority dated the 7th of February, 2022. On the 8th day of February, 2022, when the application came up for hearing, the learned silk identified the processes filed, adopted his written address and urged the Court to grant his prayers. It should be noted that before adopting his address, senior counsel applied to withdraw his relief five, dealing with the deeming of the amended appellant’s brief of argument as properly filed and served.

In opposing the application, respondent filed a counter affidavit of 22 paragraphs, deposed to by Jeremiah Akinlaja a counsel in the law firm of Dayo Akinlaja & Co, one of the law firms representing the Respondent. Hinged thereto is exhibit DAC 1, being a Court order of the Supreme Court in appeal No. SC/795/2017, drawn on the 18th of December, 2018, a letter of demand originated from the law firm of Dayo Akinlaja & Co, dated the 15th day of October, 2021 and addressed to Paul Eshiemomoh Esq., exhibit DAC 4, being a letter of communication from Paul O. Eshiemomoh to the Managing Director of Dayo Akinlaja & Co dated the 22nd of October, 2021, titled RE: Appeal No: SC/CV/800/2020, Unity Bank Plc vs. Igala Construction Co Ltd, and a written address in opposition to the motion for stay of execution dated the 25th of January, 2022. Learned counsel filed a written address on the 1st of February, 2022 and also transmitted additional authority on 9/2/2022. On the 8th of February, 2022, learned counsel similarly identified the processes filed and adopted the written address filed in urging the Court to dismiss the application with substantive costs.

The learned senior counsel referred to the deposition in his 40- paragraph affidavit, and the ten exhibits attached thereto as bearing the statement of the material facts which generated the instant application. He posited that a sole issue is crafted for the resolution of the application to wit:
Whether this Court should grant the various relief (sic) being sought by the appellant applicant.

Learned senior counsel drew the attention of the Court to Order 6 Rule 10 of the Court of Appeal Rules 2021, submitting that before the appeal can be restored back to the cause list, the order striking out the appeal must be vacated, He referred to exhibit UBP3, which evidenced the fact that appeal with No. CA/A/309/2013 was struck out by this Court, contending that the Court by virtue of Order 6 Rule 9 (1) of the rules of Court, the Court has the power to enlarge time for the doing of anything to which the rules apply. In urging the Court to exercise its discretionary powers in favor of granting the application, learned counsel argued that the reason for the delay in bringing the application was caused by the failure of the earlier counsel to properly guide the bank, when it went to the Supreme Court twice on similar application. He also argued that by exhibit UBP 3, the above appeal was struck out because of a defective brief. He commended to the Court the cases of Alhaji Haruna Kassim (Trading as Cash stores vs. Herumann Ebert (1966-69) NNLR 75 AT 77 per Ademola CJN, and Ajibola vs. Rasaki (2019) 5 NWLR (pt. 1665) 284 AT 296-297, submitting on the strength of the cases cited that appeal with No. CA/A/409/2013 is still alive and lying in limbo until restored back to the cause list. He urged the Court to relist the said appeal for hearing on the merits.

On the effect of the two decisions of the Apex Court captured in exhibits UBP 6 and UBP 9, it was submitted for the applicant that the decision in UBP 6 is based on the notice of appeal exhibit UBP4 challenging the decision of this Court striking out the appeal due to a defective brief, while what was dismissed in exhibit UBP 6 is the challenge to the decision of this Court on the 2nd day of August 2017. In the same vein, counsel posited that the ruling in exhibit UBP 9 is based on the notice of appeal against the ruling of this Court on the 21st of May, 2020 refusing to grant leave to appeal. He submits therefore that the dismissal of the notice of appeal in exhibit UBP 8 has no effect on the appeal before this Court in exhibit UBP 2.

Also submitting on the inadvertence or mistake of counsel, the senior counsel pointed out that applicant previously engaged two counsel to handle the matter, and being not satisfied with their services engaged the present counsel. He alluded to the proceedings that preceded the present application and submits that there was no need to appeal exhibit 4 as all that was needed was to rectify the brief, nor was the motion for leave to appeal necessary. He argued that in all these, appellants cannot be held liable and thereby instructed the present counsel to take over. He argued that error of counsel should not be visited on the litigant, as Courts desire is to do substantial justice as against unnecessary technicality. He maintained that the fate of the appeal is hanging in the air, on the simple reason that previous counsel instead of remedying the brief, decided to go on appeal to the Supreme Court. He argued still that the mistake, exhibited by counsel fortunately did not extend to the substantive appeal, but only delayed the hearing thereof. Premised on his submissions counsel urged the Court to grant the application to enable the appeal heard on the merit. The case of Shanu vs. Afribank (Nig) Plc (2002) 17 NWLR (pt. 795) SC 185 AT 228-229 was cited in support of the application.

The respondent vehemently opposes the application, and in that respect filed a counter-affidavit as well as a written address opposing enlargement of time to set aside the judgment etc. The learned senior counsel commenced his submission by rehashing the events that led to the instant application, and thereafter proposed a sole issue for the Court’s determination as follows:
Whether against the backdrop of the above given antecedents, the instant application is not liable to be dismissed in its entirety for being a gross abuse of Court process.

It is the contention of the learned counsel for the respondent that appellant failed to make a case warranting the grant of the prayers sought as the application constitutes a gross abuse of Court process. He argued that applicants by their own showing from the affidavit and exhibits attached thereto showed that her appeal with No. CA/A/403/2013 was adjudged incompetent and thereby struck out by this Court as shown by exhibit UBP 3, and the appeal therefrom to the Supreme Court dismissed as shown by exhibit UBP 6. Again, evident from exhibit UBP 7, the attempt to resuscitate the same appeal now sought to be relisted had been dismissed by the Supreme Court. He drew the Court’s attention to the ruling of this Court per Nimpar JCA in exhibit UBP 7, contending that the dismissal by the Supreme Court of the appeal from that ruling qualifies the present application as a monumental abuse of Court process, as the application is an invitation to the Court to overrule its decision, which the Court cannot do. To worsen the applicant’s case, counsel argued, her appeal against the said ruling was dismissed, and that effectively and eternally put paid any attempt to resuscitate the appeal, on the basis that a dismissal verdict by the Supreme Court is final. Still relying on the decision of this Court per Nimpar, JCA, senior counsel tenaciously maintained that applicant having appealed the said decision in exhibit UBP 8 and by the decision of the Supreme Court in UBP 9, all efforts to relist the appeal has run its course by reason of the finality of the decision of the Supreme Court. He urged the Court to be guided by the entire scenario and to dismiss the application while awarding substantial costs, and commended the decision of the Apex Court in Degi-Eremienyo vs. PDP (2021) 16 NWLR (pt. 1800) 387 AT 403, to the Court

Replying on points of law, learned counsel pointed out that exhibit UBP 7 is a ruling of this Court dismissing an application for leave to appeal, and that the last portion of the exhibit wrongly quoted. He submits that the dismissal of an appeal is a validation of the judgment appealed against, citing Ntuks vs. NPA (2007) 13 NWLR (pt. 1051) 392 AT 411. He argued that the case of Ekeowa vs. Nigeria Cement Co. Plc Nkalagu (2009) 4 NWLR (pt 131) 289 cited by the respondents is not relevant to the issue at hand, further contending that the appeal withdrawn at the Supreme Court is the notice of appeal in exhibit UBP 8. On the effect of the Supreme Court’s dismissal being final, and that which cannot be reviewed by any Court, counsel agrees with the legal position, but subjected same to the facts of the case, citing instances where the Apex Court had set aside its previous orders of dismissal to include Ojo vs. Adesida (2020) 10 NWLR (pt.1732) 347, Stanbic IBTC Bank Plc vs. LGC Ltd (2020) 2 NWLR (pt. 1707) 1 AT 17. Learned counsel also contended that the Supreme Court cannot dismiss an appeal that has not been heard, and since appeal with No. CA/A/403/2018 had not been heard, the apex Court cannot be said to be functus officio. On whether the case is an abuse of Court process or file mala fide, it was argued that a party who wants to pursue his constitutional right of appeal, to be heard on the merit cannot be accused of acting mala fide or in bad faith, and the cases cited are inapplicable.

Let me start by voicing that appellant’s counsel having orally applied to withdraw his relief 5, which sought for order of Court deeming the amended appellants brief of argument, and that application not having been opposed, is hereby struck out. It flows therefrom that appellant’s submissions made under item 5 and 6 at page 12 of the applicant’s written address having been overtaken by the order for withdrawal are equally struck out.

Having done that, the substance of the application now remains, the application for enlargement of time within which to apply for the setting aside of the judgment of this Court in appeal No. CA/A/403/2013, order setting aside the said judgment, relisting the appeal earlier struck out by the judgment sought to be set aside, and finally leave to the appellant to amend the appellant’s brief.

The thrust of the applicant’s application therefore seems to me as the urge or attempt to have appeal with No. CA/A/409/2019 earlier struck out for being incompetent, heard on merit. In giving consideration to the application, it is my intention to consider the first and second legs of the application simultaneously, to wit, order for enlargement of time within which to seek leave to apply to set aside the decision of this Court delivered on the 2nd of August, 2017 in appeal with No. CA/A/409/2013, and setting aside the said decision. This therefore brings to the fore the intendment of Order 6 Rule 9(1) and (10) of the Rules of this Court which stipulate that:
“The Court may enlarge the time provided by these rules for the doing of anything which these rules apply, except as it relates to the taking of any step or action under Order 16”.
“An application to set aside any judgment or ruling shall not be brought unless it is filed within 14 days from the date of the delivery of such judgment or ruling or such longer period as the Court may allow for good cause”
The keyword applicable under Rule 10 of Order 6 is for “good cause” shown, convincing the Court to exercise its discretion in its favor through cogent, verifiable and satisfactory reasons showing or excusing the applicant why he failed to exercise the option of applying for the setting aside of the judgment or ruling in question within the prescribed time allowed by the rules. In a similar application made in appeal with No. CA/A/393/2019, my brother Nimpar JCA, examined an application seeking for reliefs similar to the one at hand, and in her ruling on the issue, which can be seen at pages 11-23 of that appeal, concluded that the reasons advanced for the application were unconvincing and without merit, and thereby refused the same. For consideration in the present application is whether the applicant satisfactorily adduced tangible reasons why this Court should accede to his application extending time within which to seek order of Court setting aside its previous judgment earlier referred to. Looking at the reasons advanced in the present application, it is indeed obvious from the content of exhibit UBP 3, that appeal with No. CA/A/409/2013 was struck out by this Court on the 2nd day of August, 2017 on the ground that the brief filed was incompetent. By the intendment of Order 6 Rule 9 (10), applicant was granted a window within which to apply for the setting aside of the said ruling which is, within a period of 14 days. Applicants, as can be seen from exhibit UBP4, instead of filing an application seeking for order of Court setting aside the said decision, elected to appeal that decision of the Court, which appeal was dismissed by the Apex Court evident on exhibit UBP6 for want of prosecution. Applicants still approached this Court seeking for the leave of Court to re-initiate an appeal against the earlier judgment struck out by this Court. That application, evidenced by exhibit UBP 7, was for order of this Court extending time within which the Applicant may seek leave to appeal against the decision of Hon. Justice Salisu Garba of the High Court of the Federal Capital Territory, Abuja, delivered on the 26th April, 2013 in suit No. FCT/HC/CV/1039/02; Between Igala Construction Co. Ltd vs Unity Bank Plc, and also for;
i. An order granting leave to the Applicant to appeal against the decision of Hon. Justice Salisu Garba of the High Court of the Capital Territory, Abuja delivered on the 26th April, 2013 in Suit No. FCT/HC/CV/1039/02: Between Igala Construction Co Ltd vs Unity Bank Plc.
ii. An order granting leave to the Applicant to appeal against the decision of Hon. Justice Salisu Garba of the High Court of the Capital Territory, Abuja delivered on the 26th April, 2013 in Suit No. FCT/HC/CV/1039/02:- Between Igala Construction Co Ltd vs Unity Bank Plc.
iii. An order of extension of time within which the Applicant may appeal against the judgment of Hon. Justice Salisu Garba of the High Court of the Capital Territory, Abuja delivered on 26th April, 2013 in Suit No. FCT/HC/CV/1039/02: Between Igala Construction Co. Ltd vs Unity Bank Plc.
iv. And for such order(s) as this honorable Court may deem fit to make in the circumstance.

And take Further Notice that the ground for this Application are :
i. The judgment of the trial Court was delivered on the 26th day of April, 2013.
ii. The Applicant dissatisfied with the whole decision of this Court in Appeal No. CA/A/409/2013 dated 23rd May, 2013 which appeal was filed within time.
iii. The said appeal was struck out by this Court in its judgment delivered on the 2nd August, 2017 on the ground of proliferation of issues and incompetence of the
appeal.
iv. This case was formerly conducted by S.G Ahmad Esq before this Court
v. The former counsel S.G Ahmad Esq. filed a Notice of Appeal at the Supreme Court appealing against the judgment of this Court delivered on the 2nd August, 2017.
vi. The Applicant not satisfied with the representation of the former counsel debriefed him and briefed us on 23rd January, 2018 via their letter of instruction, to study the file and take appropriate steps.
vii. On studying the case file, it was our opinion that the proper cause of action to be taken was to file a fresh appeal before this Court, rather than appealing to the Supreme Court, as the substantive appeal was not dismissed but struck out.
viii. We advised the Appellant appropriately and we got its nod to appeal to this Court and discontinue the appeal at the Supreme Court.
ix. On receipt of the Appellant’s approval, via their letter of instruction dated 17th April, 2018, the period for the appeal had lapsed.
x. The applicant is by the Rules of this Court out of time and requires leave of this Honorable Court to extend time within which she may seek leave to appeal against the decision of the trial Court.

This Court delivered a ruling on the application encapsulated in UBP 7, to the effect that appellant failed to satisfy the Court why it could not comply with the rules of the Court on the matter, and further that applicant having withdrawn its appeal against its ruling in UBP 6, and same dismissed by the Supreme Court, are forbidden approaching this Court, the appeal having been withdrawn and thereby dismissed. A subsequent appeal on that decision to the Supreme Court was also dismissed, having been withdrawn by the appellants thereat. See Exhibit UBP9. I now ask whether my consideration of the application would differ from that in Exhibit UBP 7, and accordingly examined all the grounds upon which the reliefs sought are founded, particularly paragraphs 4-11, and the affidavit evidence deposed to by Kingsley C. Amuchuaka.

I understand the argument of the learned silk for the applicant, as contending that the decision of the High Court of the FCT, per Salisu Garba, not having been determined on merit, applicants ought not be denied their constitutional right to appeal the said decision, regardless of the decisions of this Court and the Apex Court prior to the present application. To that extent, learned senior counsel cited the case of Shanu vs. Afribank (Nig) Plc (2002) 17 NWLR (pt. 795) 185 AT 228-229.
In the case cited, the Apex Court emphasized the point that: “Courts are set up to do substantial justice and to ensure that there is a real semblance of the pursuit of it. Justice cannot be seen to have been done when a judgment is reached based on no facts whatsoever laid before the Court whereas there are facts ordinarily available. The parties will walk away with the feeling that they did not put their cases across to the Court which ought to hear them; and all because counsel and the Court adopted a totally flawed procedure. That is worse than judgment by mere technicality which the Courts denounce. Thus, it is in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claims to be adequately investigated and properly determined upon their merit”.
I totally agree with that settled and undisputable position of the law, however in giving vent to that position of the law, the Court must go further and determine whether the circumstances in the case at hand can be influenced by the decision cited.

Learned counsel on whether the Court can enlarge time within which applicant can bring the application rightly referred this Court to the provisions of Order 6 Rule (10) and (9) (1), further stating that the reasons for the late application stems from the two earlier counsel who assumingly misadvised the applicant, and the discretion of the Court exercised thereby in remedying or granting the application. These same arguments were considered by this Court per Nimpar JCA, in the earlier appeal mentioned with appeal No. CA/A/383/M/2018, particularly from pages 13-16. The question there, which also arises herein is whether sufficient and/or verifiable reasons were advanced excusing the delay for the due compliance with the provisions of the rules on the issue, taking into consideration the fact that the judgment sought to be set aside was delivered on the 2nd day of August, 2017, a period of over four years. I have perused the entire grounds and affidavit filed in support, and the reasons advanced, the short of which is the blame put square on the two earlier counsels, as can be seen at paragraphs 8-12 of the affidavits which stated as follows:
8. That the counsel to the appellant/applicant Farouk Asekome Esq. filed the Appellant’s brief before this Court on the 3rd April, 2014.
9. That in the Appellant’s brief of argument the counsel to the appellants Farouk Asekome Esq. raised three issues from the six grounds of appeal but inadvertently argued ground 4 in issues one and two and argued ground six in issues one and three.
10. That in a well-considered judgment delivered on the 2nd day of August, 2017, this honorable Court quite right held as follows:
“In the result, the three issues formulated are incompetent. They are struck out together with the brief. The appeal is consequently struck out”.
11. That the certified true copy (CTC) of the judgment in CA/A/409/2013 is annexed hereto as exhibit UBP3.
12. That rather than take steps to remedy the badly drafted appellant’s brief of argument, the counsel to the appellant/applicant on 11/8/2017, filed appeal to the Supreme Court against the judgment dated 2/8/2017. That the certified true copy of the notice of appeal against appeal NO. CA/A/9/2013 is annexed hereto as Exhibit UBP 4. The appeal was entered in the Supreme Court as SC/795/2017.

The further paragraphs of the affidavit in support of the application, up to paragraph 28 of the said affidavit goes on to narrate the acts of the applicant prior to the instant application culminating to the dismissal of the process filed before the Supreme Court.

It is clear that Learned counsel from all the averments in the affidavit was not deterred by external influence incapacitating the applicant approaching the Court within time allowed by the rules of Court. What counsel now posits as extenuating reasons founding his application is no more than the fact that what actually occurred was the exercise of the trial by error of a counsel duly engaged by the applicant, which resort to appeal rather than seeking to right the wrong pointed out backfired. It is correct to say that the actions of the two earlier counsels, who are not being denied by the applicant acted within the terms of their brief, and that they did so professionally, which cannot be likened to any instance of mistake of counsel as submitted. It has been held and rightly too, that a litigant is free and has unfettered right in the choice of counsel, and that choice once made, the counsel chosen takes full responsibility and authority of the case in the way and manner he conducts the same. His professional decision cannot be taken as the mistake of counsel just because the method taken in conducting the case failed to bear the required results. As stated earlier there was no mistake of counsel for which the applicant can be said to have been prejudiced. Where facts and circumstances are placed or presented to the Court, it then remains for the Court from those facts and circumstance to exercise its discretion guided by law, justice and common sense. See Waziri vs. Gumel (2012) ALL FWLR (pt. 632) 1660, Emenike vs. PDP (2012) ALL FWLR (pt. 640) 1261, Mba vs. Mba (2019) All FWLR (pt.973) 448 AT 474. Having examined the facts and the circumstance of the case before the Court, I fail to see any cogent, substantial and/or convincing reason capable of influencing the exercise of the Court’s discretion in favor of granting the application. It should be understood that the exercise of the Court’s discretion is exercised judiciously and judicially. For me, it would seem quite outlandish for parties to exercise the option of appeal, and later to come back and to ask for extension of time within which to re-open that which had been laid to rest. There has to be an end to litigation and applicant having failed to show any good cause why this Court should exercise its discretion in favor of granting the application, same is hereby refused.

In any case, a similar application bearing the same facts arose in the earlier application taken and resolved by this Court in appeal with No. CA/A/383/2019, wherein the Court was of the view that no substantial reasons were advanced for its discretion to be exercised in its favor. The Apex Court in treating an issue similar to what is at play in the application being considered held that:

“Furthermore, the learned Judge acted without jurisdiction to have purported to set aside though indirectly the previous order made by a Court of competent and concurrent jurisdiction.”
See Uku vs. Okumagba & Ors (1974) LPELR – 3250 SC, per Udo Udoma JSC.
Also in Ekeowa vs. Nigerian Cement Co. Nkalagu (2009) 4 NWLR (pt. 1131) 289 AT 302:
“It is wrong for a trial Court to revisit a motion which was heard and determined by a Court of coordinate jurisdiction the orders of which are binding on it. It is only an appellate Court that can revisit the motion”
It follows therefore that this Court having earlier refused such an application with the same set of reasons advanced, it would be wrong for this Court being a Court of coordinate jurisdiction to now sit on appeal over that decision being Courts of concurrent jurisdiction. The senior counsel for the applicant had also argued that the issue argued in UBP 7 is not the same with the one before the Court. I do not agree. I have earlier reproduced the reliefs sought by the applicant in the earlier motion in UBP 7. The prayers in the present application have likewise been reproduced in this judgment. In both applications, applicant pray for extension of time within which to seek leave to set aside the decision of this Court. The arm dealing with extension of time was dealt with in the appeal before now, and cannot be revisited. It seems evident to me that my Lord Kekere-Ekun JSC, in Degi- Eremienyo vs. PDP (supra) had the present application in mind having posited that:
“In spite the ingenious couching of the reliefs sought in the two applications, it is evident from their respective grounds and supporting affidavits that the two processes are a surreptitious attempt to lure this Court into sitting on appeal over its judgment delivered on the 13th of February, 2020 in SC.1/2020: PDP & Ors vs. Degi-Eremienyo & Ors. The grounds and averments therein clearly point to perceived errors in the judgment”
In the same vein, I do not see any difference in what is being sought by this application, that is different in the earlier application in CA/A/383/2019, which was refused. If for anything, the decision of our Court, appealed on by exhibit UBP8, and dismissed UB9, is the extant position of the case, and by a plethora of authorities final. See Arcon vs Fassassi (No. 4) (1987) 3 NWLR (pt.59) 42, Adigun vs A.G Oyo State (No.2) (1987) 2 NWLR (pt 56) 197, Nigerian Army vs. Iyela (2008) 18 NWLR (pt. 1118) 115, Digi-Eremienyo vs. PDP (supra) AT 409.
If the applicant is desirous of having any decision in respect of the case set aside, it is my humble view that the Court to be approached, is the Apex Court and the arguments proffered on the power of a Court setting aside its decision rendered before it.

I fail to see any iota of merit with respect to this head of the application, and this arm of the application for reasons adduced must fail, and the application refused. Having so declared, the fate of the second arm must likewise fail, as that prayer is hinged upon the grant of the first prayer.

I now ask, whether the second arm of the applicant’s prayer is grantable, and my humble view agrees with the learned senior counsel for the respondent’s assertion that by this application, applicant must be seen as inviting this Court to revisit its decision earlier made per Nimpar JCA in UBP 7, even though through the back door. Let me quote extensively what this Court said in that decision.
“I agree with Learned senior counsel to the respondent that it was the present counsel who misled the applicant and led it to withdraw the appeal at the stage that even if the apex Court said struck out, it would amount to a dismissal. If the problem with that appeal is just some defects with the grounds of appeal and as he said, some were not sustainable, they could have amended same but they decided to withdraw the appeal. Generally, appeals withdrawn by appellants after time to file brief has lapsed and before hearing are dismissed and cannot be revisited again. The effect of withdrawal of appeal was restated in the case of Eze Lambert Okoye Akuneziri vs. Chief PDC Okenwa & Ors (2000) LPELR-393 (SC), thus:
“Where there is withdrawal of appeal, as the 2nd and 3rd and 4th appellants had done, it can safely be said that the resultant position is as if there was never an appeal filed by the appellants. Under Order 8 Rule 5 of the Supreme Court Rules, 1985 as amended, an appeal which has been withdrawn shall be deemed to have been dismissed”.
The Apex Court again explained what withdrawal of appeal means in the case of Edozien & Ors vs. Edozien (1993) LPELR-1020 (SC) thus:
“When is an appeal withdrawn, in my view an appeal is withdrawn under Order 8 Rule 6(1) of the rules of the Supreme Court when the notice of withdrawal is filed by the party entitled to do so, in this case the appellant. The filing of the notice implies full knowledge and implication of the said notice. There can be no better manifestation of intention to withdraw an appeal than an appeal withdrawn by the appellant or by one of the solicitors briefed by the party withdrawing the appeal. The Court will believe in the sincerity of that intention”.
The applicant is therefore deemed to have acted wisely in withdrawing the appeal and the Court will believe such intention. The argument that it was not a dismissal on the merit does not apply to such class of dismissal, see Order 8 Rule 5 of the rules of the Supreme Court cited in the case of Eze Lambet (supra). It is an irreversible dismissal.
The argument that the judgment of this Court was under Order 11 of this Court is untenable because the matter proceeded to the Supreme Court on appeal and it ended up in a dismissal. The order of this Court is no longer extant because it has changed character by the covering and the effect of the Supreme Court order of dismissal. The applicant is therefore wrong to want to extract the order of the Court while discarding the superior order of the Supreme Court which is the extant decision on this case and binding on the Court”.

Evidently, the appeal lodged against that decision to the Apex Court having been withdrawn by counsel was dismissed per Peter-Odili, JSC, in Appeal with No. SC.800/2020, where the Court in allowing the application withdrawing the appeal stated that:
“Appeal withdrawn on account of an earlier dismissal by this Court and so this appeal is dismissed. Cost of N1,000,000.00 (One Million Naira) against learned counsel for the appellant for the abuse of process. Payment of costs to be made within 30 days of this order.”

It has been thus argued, that what the Court is being asked to do is not to review its decision as embodied in exhibit UBP 7, and that Exhibit UBP9 is the order of the Supreme Court dismissing the Notice of Appeal in exhibit 8. That while Appeal with No. CA/A/383/2018 was the subject of the dismissal by the Supreme Court in exhibit PBU 9, Appeal with No. CA/A/403/2018 still subsists, and is the subject of the present application, as against the earlier appeal ruled on. This cannot be correct. A calm examination of the reliefs sought in appeal with No. CA/A/383/2019, brings out the fallacy in the argument. The application was to reinitiate the appeal earlier dismissed by the Apex Court, and the same application having been dismissed by the Apex Court, this Court lacks the power and the viability to grant the application.

The appeal having been dismissed by the Apex Court, for the applicant to score, he must approach the goal post manned by the Supreme Court.

In the event, the application in my view is bereft of any merit and deserved to be and is hereby refused.

On costs, I take into consideration all the facts of the case, and accordingly of the view that respondent is entitled to costs, which I now order as follows: that costs of N500,000.000 be and is hereby awarded against the appellant and in favor of the respondent, payable before any further step is taken by the applicants.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft, the ruling just delivered by my learned brother, Hamma Akawu Barka, JCA.

I am in agreement with the reasoning and conclusion that there is no merit in the application and that it be dismissed.

From the facts of this application, the move of the applicant is nothing but an abuse of the process of the Court. The application is only calculated to ridicule the due administration of justice and this cannot in anyway be tolerated by us as an appellate Court. The law is well settled that where the process of the Court has not been used bona fide and properly or if the process is wrongly deployed and it is calculated to interfere with the due administration of justice, it is an abuse of the process and it must be dismissed. See PDP v. Umeh (2017) LPELR-42023 (SC) and Nwosu v. PDP & Ors., (2018) LPELR-44386 (SC).

It is for this and the greater reasons advanced in the lead ruling that I too, do hold that the application lacks merit. The application is accordingly dismissed. I abide by all the consequential orders as made in the lead ruling inclusive of the order as to costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The background facts of this application have a semblance to, and can be likened to ‘The Odyssey,’ the epic poem attributed to the ancient Greek Poet, Homer. The poem is the story of Odysseus, King of Ithaca, who wanders around for ten years after the Trojan War trying to get back home. Odysseus went through several travails, including surviving a shipwreck before safely making it back home to Ithaca, with the help of his Phaeacian friends.

Just as King Odysseus, the Applicant in this matter has wandered around and has been on an odyssey between the trial Court, through this Court to the apex Court for the past twenty years. However, unlike King Odysseus who arrived safely home after his odyssey, the applicant is doomed to get shipwrecked as admirably demonstrated in the lead ruling of my learned brother, Hamma Akawu Barka, JCA, which I was privileged to read in draft. There are no Phaeacians to guide and assist the Applicant!

The facts of this matter have been set out in the lead ruling and I shall only make reference to the facts as it may be necessary to articulate my opinion of the applicant’s application. The provenance of the odyssey to this Court is in the decision of the High Court of the Federal Capital Territory, Abuja in SUIT NO. FCT/HC/CV/1039/2002: IGALA CONSTRUCTION LTD vs. UNITY BANK PLC. The Applicant was dissatisfied with the decision of the trial Court in the said action. So it made the first journey to this Court in APPEAL NO. CA/A/409/2013: UNITY BANK PLC vs. IGALA CONSTRUCTION COMPANY LIMITED. The decision of this Court, which was delivered on 2nd August 2017, went against the Applicant. The appeal was struck out as the Court held that the issues formulated by the applicant, who was the appellant in the appeal, were incompetent. (See Exhibit UBP3 to Applicant’s application).

The Appellant did not apply to this Court to set aside the said decision striking out the appeal, neither did it take any other positive steps to generate competent issues which would be considered by this Court. The applicant, in exercise of its constitutional right of appeal, wandered on an odyssey to the Supreme Court in APPEAL NO. SC.795/2017: UNITY BANK PLC vs. IGALA CONSTRUCTION COMPANY LIMITED. It was a fruitless exercise as the apex Court dismissed the appeal for want of prosecution on 18th December 2018 (See Exhibit UBP6 to the Applicant’s application). And that marked the end of that journey.

The Applicant was not done. It instructed another counsel and another odyssey began. This time it was in APPEAL NO. CA/3831M/2018: UNITY BANK PLC vs. IGALA CONSTRUCTION COMPANY LIMITED. The applicant went on a default reset and sought the trinity prayers to appeal against the decision of the High Court of the Federal Territory in SUIT NO. FCT/HC/CV/1039/2002 which was delivered on 26th April 2013. For clarity, it is the same decision of the trial Court which was subject of the appeal to this Court in APPEAL NO. CA/A/409/2013 and the appeal to the apex Court in APPEAL NO. SC.795/2017. This Court was unable to grant the application and consequently dismissed the same on 21st May 2020 (See Exhibit UBP 7 to the Applicant’s application). The Applicant remained undeterred. So to the apex Court it headed again. The appeal this time was entered as APPEAL NO. SC.800/2020. The appeal suffered another shipwreck on 12th October 2021 as the same was withdrawn and the apex Court dismissed the same on the grounds that the earlier appeal on the same subject matter in APPEAL NO. SC.795/2017 had been dismissed by the Court. (See Exhibit IJBP 9 of the Applicant’s application).

The odyssey continued. The Applicant instructed yet another counsel. The third Captain (Counsel), so to stay, to steer the ship and avoid another shipwreck. So the instant application was filed for this Court to set aside its judgment in APPEAL NO. CA/A/409/2013: UNITY BANK PLC vs. IGALA CONSTRUCTION COMPANY LIMITED, which was delivered on 2nd August 2017. In the grounds in support of the application, it is, inter alia, suggested that the shipwrecks previously suffered was on account of the inadvertence/mistake of counsel. This ground was amplified in paragraph 4 of the written address in support of the application with the contention that the error of counsel should not be visited on the litigant (Applicant).

Without a doubt, it is settled law that Courts do not normally punish a litigant for the faults or mistakes of his Counsel: BOWAJE vs. ADEDIWURA (1979) 6 SC 143 at 147. However, the Courts do not regard this as a universal talisman, the waving of which will act as a panacea in all cases. Any allegation of the fault or mistake of counsel must not only be true and genuine, it must also be availing having regard to the circumstances of the particular case. See IROEGBU vs. OKWORDU (1990) 6 NWLR (PT 159) 643 at 669 and ERINFOLABI vs. OKE (1995) 5 NWLR (PT 395) 296 at 302-304.
Against the backdrop of the salient circumstances of this matter, which I have already set out, I am unable to see the mistake, error or inadvertence of the previous Counsel instructed by the applicant. It has to be remembered that a party is bound to accept the professionalism of his Counsel cumonere. OWNERS OF M. V. BACO LINER 3 vs. ADENIJI (1993) 2 NWLR (PT 274) 195 at 204. In the diacritical circumstances of this matter, I do not find the mistake, error or inadvertence of counsel availing in order for discretion to be exercised in favour of the applicant by a grant of the application. See AJUDUA vs. FEDERAL REPUBLIC OF NIGERIA (2019) LPELR (49897) 1 at 19.

As I stated at the outset, this matter has been in the Courts since 2002. We are now commemorating its twentieth anniversary. The Latinism is interest rei publicae ut sit finis litium – it is in the interest of the parties and indeed the public that there must be an end to litigation: ORIOYE vs. ABINA (2019) LPELR (47864) 1, NYAMBI vs. OSADIM (1997) LPELR (2136) 1 at 18 and ADEWOYIN vs. THE EXECUTIVE GOVERNOR, OSUN STATE (2011) LPELR (8814) 1 at 23. After two previous sojourns to this Court and two sojourns to the apex Court, it is my informed view that an end should now be put to this litigation. I have insightfully considered the processes filed by the applicant, and just as articulated in the lead ruling, I am unable to see my way clear in granting this application. The application is devoid of merit and based on the more elaborate reasons and conclusion contained in the lead ruling, which I adopt as mine, I join in dismissing the application and on the same terms as set out in the lead ruling.