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 UNITY BANK v. IGALA CONSTRUCTION CO. LTD (2020)

 UNITY BANK v. IGALA CONSTRUCTION CO. LTD

(2020)LCN/15768(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/A/383/M/2018(R)

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

 

Between

UNITY BANK PLC APPELANT(S)

And

IGALA CONSTRUCTION CO. LTD RESPONDENT(S)

 

RATIO

THE CONDITIONS THAT MUST BE ESTABLISHED  TO BE ENTITLED TO AN ORDER FOR ENLARGEMENT OF TIME.

 It has been settled that there are two conditions which an Applicant must establish to be entitled to an order for enlargement of time and these are:
i. He must show substantial reasons for his failure to Appeal within time.
ii. He must give good grounds which show good cause why the Appeal should be heard.
The two conditions must be established jointly and not in the alternative, see JIMOH V HON. MINISTER CAPITAL TERRITORY & ORS (2018) LPELR- 46329 (SC); DANA AIR V MRS HALIMA OLASUMBO YUSUF & ORS (2017) LPELR- 43051(CA); IKENTA BEST (NIG) LTD V A.G. RIVERS STATE (2008) 2-3 SC and ANPP V ALBISHIR (2010) 9 NWLR (Pt. 1198) 118YARGATA BYENCHIT NIMPAR, J.C.A.

THE EFFECT OF WITHDRAWAL OF APPEAL​

The effect of withdrawal of Appeal was restated in the case of EZE LAMBERT OKOYE AKUNEZIRI V CHIEF P.D.C OKENWA & ORS (2000) LPELR – 393(SC) thus:
“Where there is withdrawal of appeal, as the 2nd & 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 appellant. Under Order 8 Rule 5 of the Supreme Court Rules, 1985 as amended, an appeal which has been withdrawn shall be deemed to have been dismissed.” YARGATA BYENCHIT NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgement): This Ruling is premised on an application brought by the Applicant who is a Judgment Debtor. The motion was filed on the 2/5/2019 seeking the following:
1. AN ORDER for extension of time within which the Applicant may seek leave to Appeal against the decision of Hon. 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 V UNITY BANK PLC.
2. 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 V UNITY BANK PLC.
3. 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 V UNITY BANK PLC.
​4. And for such order(s) as this Honourable Court may deem fit to make in the circumstance.
AND TAKE FURTHER NOTICE that the grounds 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. Amad 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 Honuorable to extend time within which she may seek leave to Appeal against the decision of the Trial Court.

The application is supported by an Affidavit of 19 paragraphs deposed to by Yetunde A. Ajibola, a legal practitioner with the law firm making the application. Also accompanying the application are 6 annexures attached and marked as Exhibit UB1 – Exhibit UB6 and these are:
i. Exhibit UB1- A Certified True Copy of the judgment of the trial Court.
ii. Exhibit UB2- A Certified True Copy of the Judgment of this Honourable Court.
iii. Exhibit UB3- A Copy of the Certified True Copy of the notice of Appeal.
iv. Exhibit UB4- A Copy of counsel letter of instruction dated 23rd January, 2018.
v. Exhibit UB5- A copyof counsel letter of instruction dated 17th April, 2018.
vi. Exhibit UB6 – A copy of the proposed Notice of Appeal.

The Applicant also filed a further Affidavit in support on the 25/7/2019 and a Written Address with the leave of this Court. In reaction to the Respondent’s Written Address the Applicant filed a Reply address on points of law on the 2/8/2019, both written addresses were adopted at the hearing of the Motion on the 23/3/2020.

The Respondent filed a Written Address on the 30/7/19 which was also adopted at the Hearing. It also filed a list of additional authorities on the 15/11/19.

The Applicant reviewed facts leading to the application, these are the same facts stated in the grounds upon which the application was brought. The Applicant formulated one issue for determination in this application thus:
Whether by Order 6 Rule 9 of the Rules of this Honourable Court, and having regards to the Applicant’s Affidavit in support of its Application, this Court ought to grant the Applicant’s Application.

The Applicant submitted that in view of the facts in the Affidavit in support of the application and the provision of Order 6 Rule 9 the application should be granted because the power is bestowed on the Court to enlarge time to take a step under the rules. The Applicant argued that an extension of time is not granted as a matter of course but to be judiciously and judicially considered, citing STANBIC BANK V LONGTERM GLOBAL LTD (2017) 71 NSCQR (Pt.2) 720 at 742. On the requirement of the rules, Applicant identified one which for substantial reasons explaining the period of delay and that the proposed Grounds of Appeal i.e. a prima facie case, referring to ADELEKAN V ECU-LINE NV (2006) 3 JNSC (Pt. 8) 1 at 15. The Applicant referred to paragraph 8 and 9 of the supporting Affidavit to submit that the former Counsel misconceived the decision of the Court striking out the earlier Appeal for duplicity of issues. Furthermore, that by the time the present Counsel was ready to Appeal the time had lapsed. The Applicant submitted that it was the negligence of former Counsel but the Court has the discretion to extend time, relied on MUHAMMED V KAYODE (1994) 5 NWLR (Pt. 343) 260; SHANU V AFRIBANK (NIG) PLC (2000) 4 NSCQR 1. Applicant submitted that the misjudgment of theformer Counsel occasioned the delay and the Court should not visit the sin of Counsel on the Applicant, citing IROEGBU V OKWORDU (1990) 6 NWLR (Pt. 159) 643; BOWAJE V ADEDIWURA (1976) 6 SC 143 and AHMADU V SALAWU (1974) 1 ALL NLR (Pt.2) 318.

On the requirement that the Applicant must show good Grounds of Appeal as in ATTORNEY – GENERAL LAGOS STATE V AKINOLE (2007) ALL FWLR (Pt. 396) 720, the Applicant referred to paragraph 16 of the Affidavit and EXHIBIT UB6 to argue that it discloses good and arguable grounds of law and mixed law and facts against the Judgment. Applicant submitted that the Applicant has the right to be heard under Section 36(1) of the Constitution (as amended). Furthermore, the Applicant submitted that under Section 15 of the Court of Appeal Act, this Honourable Court can make any order to aid the interest of justice more so the earlier judgment was not on the merit.

On what a Respondent should show in opposing the application, Applicant stated that the Respondent has a duty to prove the injustice or prejudice he will suffer if the application is granted, and referred to IROEGBU V OKWORDU (supra).

In conclusion, the Applicant submitted that it has made a case that should warrant the Court to exercise its discretion by granting the application. Applicant urged the Court to grant the application as prayed.

The Respondent in the written address raised an issue for determination thus:
Whether the instant application is not liable to be dismissed for being grossly incompetent and lacking in merit.

The Respondent admitted that the Court has the discretion to grant the application, however the question is whether the Court can extend time for the Applicant to Appeal in respect of a matter that has been appealed up to the Supreme Court and was dismissed? Furthermore, Order 6 Rule 9 does not invest the Court with jurisdiction and no law, statutory or otherwise gives the Court jurisdiction to grant the application in the circumstances. The Respondent referred to Exhibit UB1 which gave judgment in favour of the Respondent and the Appeal was terminated by the Court in EXHIBIT UB2 when it was struck out. And a further Appeal to the Apex Court was dismissed, therefore only the Apex Court can set aside the decision of this Court which went up there on Appeal and only the apex Courtcould return it for hearing on the merit. Arguing further, the Respondent submitted that the Court no longer has competence to reopen issues relevant to the judgment of the Trial Court being sought to be appealed a second time, that it can only be done at the backdrop of the decision of the Apex Court. Continuing to proffer arguments, the Respondent submitted that the Appeal was dismissed upon failure to file briefs at the Supreme Court and appeal withdrawn. He lamented the erroneous belief of the Applicant that the Appeal was merely struck out by the Apex Court when it was actually dismissed and that puts a seal on the order of this Court striking out the Appeal as it can no longer be revisited as the Court must be bound by the order of dismissal made by the Supreme Court.

The Respondent supported his argument that when an Appeal is withdrawn before hearing, it must be dismissed, and referred to YOUNG SHALL GROW MOTORS LTD V OKONKWO (2010) 5 NWLR (Pt. 1217) 524. The same effect is given to an Appeal withdrawn upon an objection or the filing of a Notice of discontinuance and relied on SETRACO NIG LTD V KPAJI (2017) ALL FWLR (Pt. 884) 1732. The Respondent submitted that the Applicant is estopped from bringing the application because the Appeal was heard and struck out by this Court for proliferation of issues. Furthermore, it submitted that the problem is confounded by the fact that the Supreme Court has dismissed the Appeal.

Emphasizing the effect of the order of dismissal made by the Supreme Court, the Respondent cited the case of OLOWU V ABOLORE (1993) 5 NWLR (Pt. 293) 255 and OLOYEDE V STATE (2018) ALL FWLR (Pt. 960) 1345 that even the Supreme Court itself cannot reopen a dismissed Appeal. Learned counsel to the Respondent submitted that it is the present counsel that is under a misconception about a dismissed Appeal because by virtue of Order 8 Rule 5 of the Supreme Court Rules as amended in 2014, an Appeal withdrawn before it is called up for hearing shall be dismissed and the Appeal to the Apex Court was so dismissed. Furthermore, no statutory provision was cited to back the application in this case. He submitted that the Court cannot grant leave to Appeal against a decision that had earlier gone up to the Supreme Court and was dismissed. Furthermore, the reason advanced by the Applicant, being mistake of counsel cannot fly, citing AKANBI V ALAO (1989) 3 NWLR (Pt. 108) 118 on a choice of a party and mistake made by that choice cannot be an excuse. The Respondent finally urged the Court to refuse the application.

In its reply on points of law, the Applicant on the Respondent’s reliance on the case of YOUNG SHALL GROW (supra) submitted the striking out of the Appeal on proliferation of issues is not equivalent to a dismissal and it does not mean that this Court cannot hear this application and therefore the Respondent misconstrued the import of Order 11 of the rules of this Court. He submitted that the argument is misleading, because Order 11 deals with withdrawal of Appeal before judgment, therefore it is not applicable here. Relied on EASTERN BREWERIES PLC V INUEM (2000) 3 NWLR (Pt. 650) 662 to urge the Court not to place premium on submissions of the Respondent’s Counsel.

Next, in response to the submission that the order of dismissal will bar the Court from entertaining submissions of the Applicant on the issue. The Applicant argued that even if the Court and the Supreme Court struck out and dismissed the earlier Appeal, beingan interlocutory Appeal, it will not bar the Applicant from approaching the Court to Appeal against the judgment of the Trial Court. Furthermore, the Applicant argued that the mistake of the former counsel cannot make the Court impute to the current counsel blame, relying on AKANBI V ALAO (supra) and contended that the facts are not similar because in this case the action of the former counsel was a legal opinion taken in chambers and not in the Court, he urged the Court to distinguish the case of AKANBI V ALAO (supra) from the facts of this application and sought the Court not to apply that decision. Applicant urged the Court to grant the application.

RESOLUTION:
The application is simply one seeking extension of time to Appeal against the judgment of the Trial Court made in terms of trinity prayers. It was founded on the grounds reproduced earlier and supported by an Affidavit with exhibits attached. It was opposed by the Respondent.
Order 6 Rule 9 of the rules for the Court provides that:
“Every application for enlargement of time within which to Appeal shall be supported by an Affidavit setting forth good and substantial reasons for failure to Appeal within the prescribed, and by the Grounds of Appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the Appeal should be heard.”
It has been settled that there are two conditions which an Applicant must establish to be entitled to an order for enlargement of time and these are:
i. He must show substantial reasons for his failure to Appeal within time.
ii. He must give good grounds which show good cause why the Appeal should be heard.
The two conditions must be established jointly and not in the alternative, see JIMOH V HON. MINISTER CAPITAL TERRITORY & ORS (2018) LPELR- 46329 (SC); DANA AIR V MRS HALIMA OLASUMBO YUSUF & ORS (2017) LPELR- 43051(CA); IKENTA BEST (NIG) LTD V A.G. RIVERS STATE (2008) 2-3 SC and ANPP V ALBISHIR (2010) 9 NWLR (Pt. 1198) 118. The relief sought here is a discretionary one which is only granted upon relevant materials, which are cogent, sufficient and convincing placed before the Court and to be so decided judiciously and judicially. The Applicant by paragraphs 6-15 deposed to certain facts, principal amongst which is the fact that the matter had gone up to the Supreme Court previously and was dismissed. The earlier Appeal was struck out by this Court on the ground that the issues distilled by the Appellant were fraught with proliferation, thus incompetent and subsequently struck out, see EXHIBIT UB2. The Applicant thereafter proceeded to the Supreme Court on the Notice of Appeal exhibited as EXHIBIT UB3. The Applicant did not exhibit the record of what transpired at the Apex Court. It was however agreed by the parties that the Appeal was dismissed. The Applicant submitted that the Appeal was withdrawn and the dismissal therefore was not on the merit and it cannot be a bar to seeking to appeal again against the same judgment. The Respondent argued that the dismissal was based on failure to file brief and is a bar to subsequent steps on the said judgment, he cited authorities in support. From the time the Appeal to the Supreme Court was dismissed and the bringing of this application, the applicant’s counsel laid blame at the doorsteps of the former counsel and urged the Court not to visit the misconception of the law by the former counsel on the Applicant, relied on authorities<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>. </br<>In addressing the merit of the application, it can be conveniently considered from two angles, the first one is whether from the reasons or facts enumerated and ascribed to the former counsel; whether they can be good reasons when taken along the Grounds of Appeal to enable the Court grant this application. The second angle is whether the application, even if established under Order 6 Rule 9 can be granted in view of the order of the Apex Court dismissing the earlier Appeal that got to that Court.
I have carefully considered the reasons for the delaying in bringing the application on time and all one can see is that the present counsel dumped all blame on the former counsel for failing to act in a manner he expected. The Affidavit highlighted how the previous Appeal ended in the Apex Court. It also disclosed that the Applicant was not satisfied with the services rendered by the former counsel. Furthermore, the earlier Appeal (CA/A/409/2013) was struck out by this Court. Paragraph 10-14 of the supporting Affidavit and they say:
“10. That after reviewing the file, we informed, the Applicant that the proper course of action to be carried out wasto file a fresh Appeal before this Court since the appeal was struck out and not dismissed, rather than Appeal to the Supreme Court.
11. That we know as a fact that the grounds of Appeal to the Supreme Court as filed by the former Counsel were also unsustainable as the decision of this Court striking out the Appeal was unassailable.
12. That we thereafter advised the Appellant to file a fresh Appeal this Court and discontinue the Appeal before the Supreme Court.
13. That on receipt of the of the Applicant’s approval via their letter of instruction dated 17th April, 2018, the period for the Appeal had lapsed.
14. That the delay in filing our Appeal was not as a result of indolence on our part or the Applicant, but the aforementioned reasons.”
I cannot find any cogent, convincing and substantial reason in the above quoted paragraphs justifying the delay in seeking to Appeal the judgment. All the facts enumerated above, there is nothing beyond the decision of counsel or choice of the Applicant counsel made which caused it to fail to Appeal on time. The Ruling of the Supreme Court was a final Judgment due to its peculiarities. There was no external influence that put the Applicant in a difficult situation that made it difficult for it to Appeal within time and competency. In any case, the truth is revealed in paragraph 14 which referred to the preceding paragraphs and it can be located at paragraph 10 which I reproduce it for emphasis thus:
“That after reviewing the file, we informed the Applicant that the proper course of action to be carried out was to file a fresh Appeal before this Court since the Appeal was struck out and not dismissed, rather than Appeal to the Supreme Court.”
This was a professional advice from a counsel to his client. The decision to tow that line was conscious and deliberate and must have weighed the risks and Applicant opted to go along with the decision. The most damaging misconception is paragraph 7 of the supporting affidavit which says:
“On studying the case file, it was our opinion that the proper cause of action to be taken was to file fresh Appeal before this Court, rather than appealing to the Supreme Court, as the substantive was not dismissed but struck out.”
​There are no substantial, cogent and convincing reasons that the delay was not deliberate. It was a professional advice accepted by the client. The first condition to be established was not made out as the materials placed before the Court did not show good cause and the reasons advanced are insufficient, I am not convinced and therefore find it difficult to exercise discretion in Applicant’s favour. The application will fail on this ground.
The next condition to satisfy is that the Grounds of Appeal are good and arguable. Having failed to explain the reason for the delay, even if the proposed grounds are grounds that are arguable, the application cannot be granted because the conditions are Siamese twins, both must be established at the same time and not in the alternative.
​The second angle identified for consideration in this ruling is that even if the Applicant had established the two conditions listed above, in view of the surrounding facts that the Appeal was earlier dismissed by the Apex Court, can this Court grant the application? The Applicant admitted that this Court struck out the Appeal. If the Applicant was diligent enough, it could have appealed a fresh immediately but they chose to go on Appeal to the Apex Court over the Order striking out the Appeal and before the hearing of the Appeal at the Supreme Court, they voluntarily withdrew the Appeal and the Apex Court expectedly dismissed the Appeal. It is the same judgment being sought to be appealed against here. 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 the 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 V CHIEF P.D.C OKENWA & ORS (2000) LPELR – 393(SC) thus:
“Where there is withdrawal of appeal, as the 2nd & 3rd and 4th appellants had done, it can safely be said that the resultantposition is as if there was never an appeal filed by the appellant. 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 V 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 therefore is 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, the rules of the Apex Court cited in the case of EZE LAMBERT 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 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.
The Supreme Court in the case of SETRACO NIG LTD V KPAJI (supra) further considered the effect of an Appellant in withdrawing an Appeal in the following words:
“In similar circumstances Kalgo JSC in Kraus Thompson Organization v NIPSS (2004) 17 NWLR (Pt 901) 44 at 64 described the situation thus: – “Once the Respondent applies under the said Rule, the Appeal must be dismissed and such dismissal is final… Therefore the order striking out the Appeal is in full compliance with the provisions of Order 5 Rule 10 of the Court of Appeal Rules and “striking out” amounts to a “Dismissal” of the Appeal, there is no relisting of such an Appeal”. In the case at hand, the wordings of the Notice of Discontinuance or Withdrawal left no doubt that it was the intendment of the Appellant to withdraw from further prosecution of the Appeal. In fact, those were the exact words and stated under Order 11 Rules 1 and 2 of the Court of Appeal Rules underscored what was expected and the Court obliging in carrying out those wishes cannot now be told that the resultant effect was not what was expected. A party cannot be allowed to play with the processes of the Court as the mood propels him irrespective of the plain, clear and unambiguous provisions of the law he had set out to utilize. The party must sink and swim with what he had by his own volition activated. I place reliance on Abalogu v. Shell Petroleum Development Company Ltd (2003) 6 SCNJ 162 at 284 per Iguh JSC. The case of Ezomo v A. G. Bendel State (1986) 4 NWLR (Pt.36) 448 at 362 could easily have had this case in mind and I shall quote Aniagolu JSC thus: – “Having held that the withdrawal notice filed by Mr. Obasiyi was validly filed. Order 3 Rule 18 of theCourt of Appeal Rules would automatically take effect. By Rule Sub-rule 5 of Rule 18: An Appeal which has been withdrawn under this Rule, whether with or without an Order of the Court shall be deemed to have been dismissed. This Sub-rule 5is in identical terms with Order 7 of Rule 17 (5) of the Supreme Court Rules 1977 and the current Order 8 Rule 6(5) Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obasiyi, in my view, was to terminate the Appeal filed against the Judgment of the High Court with or without an order of Court.”
Per PETER-ODILI, J.S.C (p. 26-28, paras. A-F)
The Applicant in reply argued that even though the Appeal was dismissed under Order 8 Rule 5 of the Supreme Court Rules, it was due to error of Counsel and not on the merit. The simple answer to that is that the Applicant cannot come to this Court for an order made under Order 8 Rule 5 of the Supreme Court Rules. We have no such powers to apply the said rules or set it aside an order made pursuant to such rules. We cannot stand before a moving train even on the strongest temptation, it will not happen. The Applicant should go back to the apex Court to make his application to set aside the Order of dismissal if he thinks its expedient to do so.
Wherever the Applicant’s counsel got the idea that error of Counsel can allow him reopen a dismissed Appeal is strange, misguided and evidence that he too missed the point. As stated by my Lord Peter-Odili, JSC in the above quoted Judgment, once a Notice of Withdrawal is filed, the appeal stands dismissed and cannot be relisted. Mistake of Counsel is of the old order, untenable in the circumstances of this application, therefore the decision in AKANBI V ALAO (supra) have to be considered in the context of its peculiar facts to see if it fit into the set of facts in this Appeal. A party chooses his counsel and he is bound by whatever decision or action such counsel takes while acting under his instructions. A litigant is free and has unfettered right to engage a counsel of his choice. Such Counsel when he takes a decision on how to handle the matter, cannot be mistake of Counsel. It is a decision taken when he has full control of the case. The authority to act is no longer limited by even the litigant himself and the authority of AKANBI V ALAO (Supra) is relevant. Furthermore, the professional decision of Counsel has taken the matter to a terminal end that is a point of no return. It is different from a mistake of counsel. There was no mistake of counsel. Furthermore, the Appeal to the Supreme Court was not an interlocutory Appeal because this Court struck out the Appeal in a judgment upon the finding that the appeal was incompetent because of proliferation of issues. There was nothing left pending before this Court to make the Appeal to the Supreme Court an interlocutory Appeal.
The Applicant must establish that the conditions enumerated in the case of DINGYADI & ORS V INEC & ORS (2010) LPELR-951 which it contends were not complied with to sustain the claim that it could reopen the Appeal and even so, the application must be before the Supreme Court to relist the Appeal dismissed and not to this Court to initiate a fresh Appeal when the order of dismissal is still subsisting. This Court lacks the power to do that and no law or authority was cited by the Applicant to convince this Court that it can do as Applicant seeks in this application. The law bars an Appellant who has withdrawn his Appeal to want to reactivate it and that is in accord with public policy which demands that there should be an end to litigation. Consequently, Applicant wants to be allowed to approbate and reprobate at will. If parties are allowed to withdraw Appeals and resuscitate them at their whims and caprices, then there shall be no end to litigation and the law does not allow a litigant to do as he wishes. That is why rules are in place to guide parties and ensure predictability in the administration of justice.
The Applicant admitted it withdrew its Appeal at the Supreme Court, he is forbidden from approaching this Court with a fresh application to resuscitate the Appeal withdrawn. That order of dismissal still subsists and this Court is bound to give effect to that order and cannot be heard to do contrary to that. The Applicant’s counsel got legal principles on withdrawal of Appeals wrong. A withdrawn Appeal is usually dismissed and cannot be reopened. On this ground, the application cannot be granted.

The application therefore lacks merit and is bound to fail. It is hereby dismissed. I make no Order as to cost.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft of the ruling just delivered by my learned brother, Yargata Byenchit Nimpar, JCA.

I agree that this application is grossly unmeritorious. The right of appeal as conferred by the Constitution of the Federal Republic of Nigeria 1999 is not meant for those who are not diligent to exercise that right on time. An applicant who is seeking for extension of time to file an appeal after the time had lapsed, must show substantial and genuine reason for his failure to appeal within time. He must also show good cause why the appeal he had in mind of filing out of time should be heard.

I have carefully gone through the processes filed and the affidavit in support of this application, there is no just cause shown for the delay and there is nothing to justify the hearing of the proposed appeal. I therefore, agree with my learned brother in the lead ruling that this application should be dismissed and I do dismiss the application.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

PAUL ESHEMOMOH ESQ.For Appellant(s)

DAYO AKINLAYA, SAN, with him, BOLA AIDU ESQ., OBIDOKE OKOLO ESQ., OSUYIKANMI KEHINDE ESQ., J.O AKANLAYA ESQ. and FASHINA OLYOMI ESQ.For Respondent(s)