ZION CO (NIG) LTD & ANOR v. JONAS PETROLEUM PLC (2022)

ZION CO (NIG) LTD & ANOR v. JONAS PETROLEUM PLC

(2022)LCN/16671(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/L/77/2010(R)

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1. ZION COMPANY NIGERIA LIMITED 2. DR. ADEGBOYEGA OLAOPA APPELANT(S)

And

JONAS PETROLEUM PLC RESPONDENT(S)

RATIO

THE DUTY OF THE COURT IN ADJUDICATING ON A MATTER

In considering this application, it is important to bear in mind the well settled position that the duty of the Courts is to do justice according to the law and, not sentiments. Sentiments command no place in judicial deliberations for if it did, our task would be definitely more difficult and less beneficial to the society, per Obaseki, J.S.C in Ezeugo v. Ohanyere (1978) LPELR-24888(SC). See also Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Umanah v NDIC (2016) LPELR-42556(SC); Global West Vessel Specialist (Nig) Ltd v. NNLG Ltd & Anor (2017) LPELR-41987(SC). Indeed, if sentiments were permissible within the sphere of adjudication, there would be so much confusion. PER OTISI, J.C.A.

WHETHER OR NOT TERMS OF SETTLEMENT CAN CRYSTALLIZE INTO A CONSENT JUDGEMENT

Secondly, it is well settled that Terms of Settlement can only crystallize into a consent judgment when the Court enters it as its own judgment, upon the application of the parties. See Star Paper Mill Ltd & Anor v. Adetunji & Ors (2009) LPELR-3113(SC), Haastrup Line (W.A.) Ltd & Anor v. Wiche & Ors (2020) LPELR-57261(CA), Wejinya & Anor v. Wordu & Anor (2021) LPELR-55774(CA). It is only when the said Terms of Settlement is entered as a consent judgment that it has the force or sanction of a final judgment of the Court. In Ras Palgazi Construction Co. Ltd v. FCDA (2001) LPELR-2941(SC) at page 17, the Supreme Court, per Katsina-Alu, J.S.C (CJN rtd) succinctly stated:
“Unless and until the Court makes the terms of the settlement a judgment of the Court, it is not binding and cannot therefore be enforced.
It is a rule of practice that parties may settle their dispute by consent in the course of the trial. Such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. So when the Court adopts the terms of settlement and makes it its judgment, then the settlement assumes the status of a consent judgment binding upon the parties.” PER OTISI, J.C.A.

THE POSITION OF LAW ON JURISTIC PERSONS

The law is trite that the Courts only have jurisdiction on juristic persons natural or artificial, upon death, a natural person loses his legal personality, and where such person is involved in litigation at the time of his death, the need for him to substituted by a living person in order to protect his interest in the litigation by way of prosecuting or defending the action cannot be over emphasized. Restating the general principle of law relating to substitution in the case of IN RE Apeh & Ors vs. PDP & Ors (2017) LPELR-42035 (SC), Muhammad, JSC, (now CJN) postulated AT pages 35-36 thus:
“The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part anymore in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased. See Eyesan v. Sanusi (1984) 4 SC 115 at p. 137. Bankruptcy of one of the parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances.” PER SIRAJO, JC.A

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgement): By Motion on Notice filed on 31/1/2022, the Cross-Appellants/Applicants sought the following Orders:
1. AN ORDER ENLARGING the time within which the Cross-Appellants may file their Cross-Appellants’ brief in this matter.
2. AN ORDER DEEMING as having been properly filed the Cross-Appellants’ brief already filed on 31/10/2011.
3. AN ORDER FOR SUBSTITUTION of the deceased second Cross-Appellant with MRS ADETUTU ODEBUNMI in her capacity as the Executrix of the Estate of LATE DR. ADEGBOYEGA OLAOPA.
4. A CONSEQUENTIAL ORDER AMENDED subsequent processes in this appeal to reflect the said Mrs. Adetutu Odebunmi as the second Cross-Appellant.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.

The grounds on which the application was brought are:
1. The judgment Cross-Appeal was delivered by the High Court of Lagos State on 19/5/2009.
2. The Notice of Cross-Appeal was filed on 10/7/2009.
3. The Cross-Appellants’ Brief was filed out of time on 31/10/2011.

4. In order to facilitate the hearing of the Cross-Appeal, it is necessary to regularize the brief already filed as per the prayers 1 and 2 in the Application.
5. Meanwhile the 2nd Cross-Appellant died in the year 2012 wherefore it is necessary that he be substituted in the Appeal with his Executrix so as to protect the deceased’s Estate interest in the appeal.
6. Upon the substitution of the deceased 2nd Cross-Appellant, a consequential amendment would be necessary to reflect the name of the executrix as the 2nd Cross-Appellant in subsequent processes in this matter.
7. It is in the interest of justice that the application be granted moreso as same would not occasion any prejudice to the other party.

In support of the application is an affidavit of eleven paragraphs deposed to by Thomas Ukwa, Legal Practitioner, in the Firm of the Applicants’ Counsel, with Exhibits 1 – 4 attached:
2. The Judgment Cross-Appealed in the matter was delivered by the lower Court on 19/5/2009.
3. The Notice of Cross-Appeal was filed on 10/7/2009.
4. The Cross-Appellants’ Brief was filed out of time on 31/02/2011.
5. In order to regularize the brief the Cross-Appellants filed on 1/11/2011, an earlier Motion for enlargement of time. Annexed herewith as Exhibit 1 is the said motion without the annexure thereto.
6. At the last proceeding in the matter on 10/2/2020, the honorable Court muted the idea of Written Address in respect of the Cross-Appellants’ aforesaid earlier motion, but deferred the decision on same till after the Respondent has filed her response to the motion.
7. In the meanwhile, the new rules of this honorable Court, Court of Appeal Rules 2021, came into force which made filling of a Written Address mandatory for every application to the Court.
8. In order to make for expeditious hearing of the Cross-Appeal, the Cross-Appellants have taken advantage of the relevant provisions of the new Rules by filling the instant application for enlargement of time to replace the earlier application, wherefore the Applicants filed a Notice of Withdrawal to withdraw the earlier motion attached hereto as Exhibit 2 is the said Withdrawal Notice.
9. Meanwhile, the 2nd Cross-Appellant died in the year 2012, wherefore it became necessary that he be substituted in the matter with MRS. ADETUTU ODEBUNMI; in her capacity as the Executrix of the will of the deceased 2nd Cross-Appellant so as to protect the interest of the Deceased’s Estate in the subject of the Appeal. Annexed herewith as Exhibits 3-4 are the Notice of Death and the Will of the 2nd Cross-Appellant.

In opposition to the application, the Respondent filed a Counter-Affidavit of seven paragraphs on 25/3/2022, deposed to Ajayi Ibrahim Adeniyi, Legal Practitioner, in the Firm of the Respondent’s Counsel to which is annexed Exhibits A – G, stating:
4. That I am further informed by OLAOLUWA E. ALE-DANIEL, the Principal Counsel in our office at about 1:28pm on Thursday 24th February, 2022 at our office and I very much believe him to be the truth as follows:
a. That in 2001, the Applicants herein instituted the action culminating in the Appeal in Appeal No: CA/L/77/2010 which was dismissed by application of the Respondent herein on 10th February, 2020.
b. That prior to the institution of the Applicants’ case at the trial Court in Suit No: ID/626/2001, both the Applicants and the Respondent agreed to renew the existing rent on the property the subject matter of this case for a further fifteen (15) years period with the rent on the first five (5) years of same agreed at N135,000.00 (One Hundred and Thirty-Five Thousand Naira) per month.
c. That the Applicants’ Counsel on record before this Honourable demanded for legal fee for the agreed Tenancy Agreement and the argument arising therefrom led to the said Counsel issuing Quit Notice to the Respondent to vacate the Petrol Station.
d. That fearing a possible unlawful ejection of the Respondent, the Respondent briefed his Counsel to commence action at the High Court of Lagos State against the Applicants in Suit No: LD/3176/2000 at the lower Court leading to Judgment of 8th October, 2007 in which the Respondent herein filed a Notice of Appeal dated 17th October, 2007. Attached and Marked as Exhibit “A” is a copy of the Notice of the Appeal.
e. That the Applicants herein also commenced action for ejection of the Respondent from the Petrol Station the subject matter of the Applicants’ application at the Lagos State High Court, Ikeja in Suit No: ID/626/2001 in which Judgment was delivered on 19th May, 2009 per Honourable Justice K. Alogba leading to the Respondent filing a Notice of Appeal at the Appeal Section of the lower Court. Attached and marked as Exhibit “B” is a copy of the Notice of the Appeal dated 20th May, 2009.
f. That the Respondents herein then filed an application dated 12th April, 2010 in the appeal against the judgment of the ower Court in Suit No: ID/626/2001 and No: CAL/L/77/2010 praying this Honourable Court for consolidation of the two appeals pending before this Honourable Court. Attached and marked as Exhibit “C” is a copy of the application dated 12th April, 2010, but filed on 13th April, 2010.
g. That the application for consolidation was never moved by the Respondent nor granted by the Honourable Court until withdrawal of the Appeal on 10th February, 2020.
h. That the Respondent herein applied for and compiled records of appeal from the appeal section of the lower Court with regard to Exhibits “A” i.e Appeal No. CA/L/254/11 herein and proceeded to file application dated 24th March, 2011 for extension of time to compile records out of time and deem same as properly filed and served attached and marked as Exhibit “D” is a copy of the application dated 24th March, 2011.
I. That I am aware that the said application for extension of time to compile record out of time dated 24th March, 2011 was neither moved by the Respondent and as such was not granted by this Honourable Court until the withdrawal of the appeal on 10th February, 2020 as a result of settlement agreement reached with the Applicants in 2012.
j. That I verily believe that in the absence of a valid compiled Record of Appeal, the appeals, the Records of Appeal and the supplementary Record of Appeal are not properly before this Honourable Court until same was withdrawn on 10th February, 2020.
k. That I am aware that by the application of the Applicants at the lower Court dated 1st October, 2000 in Suit No: ID/626/2001 ZION COMPANY NIGERIA LIMITED & ANOR V. JONAS PETROLEUM PLC. The Applicants herein as the Plaintiffs in that suit, prayed for and got the order of the Honourable Court to the effect that the Respondent herein should pay the sum of N135,000 (One Hundred and Thirty-Five Thousand Naira) per month as rent sum agreed with regard to the Petrol Station the subject matter of the case into Court in the name of the Chief Registrar of High Court, Ikeja, Lagos State. Attached and Marked as Exhibit “E” is a copy of the Certified True Copy of the ruling of the Honourable Lower Court dated 18th January, 2002.
l. That in compliance with the order of the Honourable Lower Court (Exhibit E), the Respondent herein paid the rent as agreed to the Chief Registrar on monthly basis and the Applicants collected same. Attached and Marked as Exhibit “F” is a copy of Certified True Copy of Enrolment of Order dated 9th November, 2006.
m. That on 19th May, 2009, the Honourable Trial Court per Honourable Justice K. Alogba Delivered its judgement granting in part the claims of the Applicants herein while other heads of claim the basis of the Proposed Cross-Appeal was refused.
n. That sometime in February, 2012, the 2nd Applicant (now deceased) while on sick bed in Accra Ghana sent emissary to the Respondent herein seeking for amicable settlement of “all issues arising from the pending appeals as according to the emissary, the 2nd Applicant (now deceased) needed funds for his surgery and will desire to have the Petrol Station leased to a new dealer so as to realize funds for the treatment.
o. That after series of meetings and considering the urgent medical attention needed by the 2nd Applicant (now deceased), compassionately, settlement was agreed and executed in full and final determination of the issues arising from the appeal and same having been filed at the Registry of the lower Court was served on the Counsel to the Applicants herein. Attached and Marked as Exhibit “G” is a copy of the Terms of Settlement dated 28th, March, 2012.
p. That the Counsel to the Applicants on record herein then insisted that the sum awarded as professional fee with accrued interest due to him by Judgment in his favour in the sum of N1,262,000.00 (One Million, Two Hundred and Sixty-Two Thousand Naira) only in Suit No: ID/1037/2004 the basis of an appeal by the Respondent herein be made part of the settlement process which the Respondent obliged. Attached and Marked as Exhibit “H” is a copy of the duly acknowledged letter dated 27th April, 2012 together with a copy of the acknowledged Access Bank cheque no. 00000121 of same date by the law firm of the Counsel to the Applicant for the receipt of the Judgment sum.
q. That all the terms in the agreed Terms of Settlement dated 28th March, 2012 were completely satisfied by parties.
r. That shortly thereafter, the 2nd Applicant who initiated the settlement and executed the terms of Settlement personally, died.
s. That I am aware that by the Court of Appeal Rules 2011 being the Rules of this Honourable Court as at the time settlement was agreed, Terms of Settlement could not be filed before this Honourable Court hence, it was duly executed and filed at the Registry of the trial Court.
t. That since 2012, the Respondent has vacated the Petrol Station long before the demise of the 2nd Applicant without any issue raised as outstanding until 10th February, 2020 when the Counsel to the Applicants who did not oppose the withdrawal of our then pending appeal without prior indication to the contrary notified this Honourable Court of his intention to pursue the Cross-Appeal dated 10th July, 2009.
u. That parties sought to be substituted for the 2nd Applicant (now deceased) in the instant application were not parties to the Terms of Settlement dated 28th March, 2012 (Exhibit “G”) herein.
v. That Counsel to the Applicants herein fully participated in the discussion; drafting and execution of the Terms of Settlement dated 28th March, 2012.
w. That the Applicants’ application as presently constituted is incompetent.
x. That this Honourable Court lacks the jurisdiction to entertain the Applicants’ application as presently constituted before this Honourable Court.
y. That there exists no appeal upon which a Cross-Appeal is sought to be filed.

The Applicants filed a reply to the Counter-Affidavit of twenty-three paragraphs, deposed to by Boluwatife Olabintan, Legal Practitioner, in the Firm of the Applicants’ Counsel, stating:
3. The judgment appealed and Cross-Appealed in this matter was delivered by the High Court of Lagos State on 19/5/2009.
4. On 20/5/2009, the Defendant/Respondent filed her Notice of Appeal against the judgment.
5. On 10/7/2009, the Claimants/Cross-Appellants filed a Notice of Cross-Appeal against the judgment. Annexed herewith as Exhibit AA is the Notice of Cross Appeal.
6. The appeal was entered on 19/5/2010 pursuant to the Respondent’s motion dated 2/2/2010 for Departure to compile record.
7. On 2/6/2010, the Cross-Appellants filed the Additional Record of Appeal.
8. The Appellant’s Brief of Argument was filed on 5/7/2010.
9. The Cross-Appellant followed up the Cross-Appeal by filing their Brief of Arguments on 31/10/2011.
10. On 10/2/2020, the Defendant/Respondent withdrew their appeal and same was dismissed.
11. The Cross-Appeal relates solely to the above judgment of the lower Court in respect of Suit No.ID/626/2001.
12. The instant Cross-Appeal is in respect of Appeal No.CA/L/77/2010 and not Appeal No.CA/L/254M/2011.
13. The Appeal/Cross-Appeal herein was never consolidated with Appeal No.CA/254/2011 or any other Appeal.
14. The motion to compile record dated 24/3/2011 and referred to as Exhibit D in the Respondent’s Counter-Affidavit was not filed in respect of this matter but rather in respect of another Appeal i.e. Appeal No.CA/L/254M2011.
15. The payment to the Cross-Appellants’ Counsel was in satisfaction of the judgment sum and interests awarded to him by the lower Court as clearly stated in the Respondent’s letter dated 27/4/2012 attached herewith as Exhibit BB.
16. The said payment was not pursuant to the purported “Terms of Settlement” more so as the purported Terms did not include such payment as part of the Terms thereof. Annexed herewith as Exhibit CC is the purported Terms.
17. The purported “Terms of Settlement” dated 20/3/2012, was never filed nor adopted in Court neither was it pronounced upon by any Court as a judgment.
18. As of the aforesaid date of the ‘Terms of Settlement”, the lower Court was already functus officio.
19. Also, the appeal was already entered in this matter as of the date of the purported “Terms of Settlement”.
20. The purported Terms did not obligate the Cross-Appellants to withdraw their Cross-Appeal.
21. Counsel to the Applicants in this matter did not fully participate in the discussion, drafting and execution of the purported “Terms of Settlement.”

Nojim Tairu, Esq., Counsel for the Applicants, filed a written address on 31/1/2022. He also filed a reply on points of law on 5/5/2022, in response to the written address in support of the Counter-Affidavit filed on 25/3/2022 by O.E. Ale-Daniel, Esq., Counsel for the Respondent. The written addresses were, respectively, adopted on 9/5/2022 by Mr. Nojim Tairu, for the Applicants, and by Mr. Ale-Daniel, for the Respondent.

Arguments of Counsel
Mr. Tairu for the Applicants formulated this issue for determination of the application:
Whether the Applicants have met the conditions required by the Rules for the grant of the prayers sought.

He relied on the depositions in the affidavits in support of the application. He submitted that the Court, by Order 6 Rule 9(1) of its Rules was empowered to grant applications of this nature seeking enlargement of time for doing any act or taking any proceedings, in order to do substantial justice. The decision in Kolawole v Alberto (1989) 1 NWLR (PT 98) 396 was also cited and relied on.

By virtue of Order 15 Rule 2, that an application to substitute a deceased party may also be made and granted. It was further submitted that Order 4 Rule 1 gave the Court the powers to grant the amendment sought.

The Court was urged to grant the application.

For the Respondent, Mr. Ale-Daniel framed the issue for determination in this manner:
Whether this application as presently constituted ought to be refused in its entirety in the interest of justice as being prejudicial to the interest of the Respondent and same being incompetent which ought to be dismissed in its entirety.

He argued that the application ought to be dismissed. That there was no cross-appeal. That the cross-appeal relied on Records of Appeal in both CA/L/77/2010 and CA/L/254/2011. While the record in CA/L/77/2010 was properly before the Court, the record in CA/L/254/2011 was not regularized. There was therefore no record of appeal to give life to the cross-appeal. There were Terms of Settlement executed in CA/L/77/2010 but not filed. The party sought to be substituted was not within the contemplation of the parties when the Terms of Settlement was reached. The Applicants’ Counsel was a major participant in the preparation of the Terms of Settlement. The present application would prejudice the spirit of the said Terms of Settlement and would prejudice the Respondent. The Court was urged to dismiss the application.

In his reply on points of law, Mr. Tairu pointed out that the application was in respect of cross-appeal in CA/L/77/2010 only.

That substitution of parties is governed by Rules of Court not by Terms of Settlement, more so when the Terms of Settlement are inchoate and not made the judgment of any Court. The said Terms of Settlement were executed three years after the lower Court had delivered judgment. The said Terms were therefore incompetent. The Court was urged to discountenance the arguments of the Respondent.

Resolution
In considering this application, it is important to bear in mind the well settled position that the duty of the Courts is to do justice according to the law and, not sentiments. Sentiments command no place in judicial deliberations for if it did, our task would be definitely more difficult and less beneficial to the society, per Obaseki, J.S.C in Ezeugo v. Ohanyere (1978) LPELR-24888(SC). See also Okpe v. Fan Milk Plc & Anor (2016) LPELR-42562(SC), Umanah v NDIC (2016) LPELR-42556(SC); Global West Vessel Specialist (Nig) Ltd v. NNLG Ltd & Anor (2017) LPELR-41987(SC). Indeed, if sentiments were permissible within the sphere of adjudication, there would be so much confusion.

This application ordinarily ought not to elicit much drama. It is a simple application. The affidavit evidence on both sides, which has largely been reproduced above, tells the story at stake. In the first place, the application is in respect of the cross-appeal filed in CA/L/77/2010, and not any other appeal, including CA/L/254/2011. In any event, one single appeal or cross-appeal cannot rely on two different records of appeal compiled and transmitted in two separate appeals. That would be absurd.

Secondly, it is well settled that Terms of Settlement can only crystallize into a consent judgment when the Court enters it as its own judgment, upon the application of the parties. See Star Paper Mill Ltd & Anor v. Adetunji & Ors (2009) LPELR-3113(SC), Haastrup Line (W.A.) Ltd & Anor v. Wiche & Ors (2020) LPELR-57261(CA), Wejinya & Anor v. Wordu & Anor (2021) LPELR-55774(CA). It is only when the said Terms of Settlement is entered as a consent judgment that it has the force or sanction of a final judgment of the Court. In Ras Palgazi Construction Co. Ltd v. FCDA (2001) LPELR-2941(SC) at page 17, the Supreme Court, per Katsina-Alu, J.S.C (CJN rtd) succinctly stated:
“Unless and until the Court makes the terms of the settlement a judgment of the Court, it is not binding and cannot therefore be enforced.
It is a rule of practice that parties may settle their dispute by consent in the course of the trial. Such settlement is a compromise and in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. So when the Court adopts the terms of settlement and makes it its judgment, then the settlement assumes the status of a consent judgment binding upon the parties.”
Therefore, much as I sympathize with the frustrations of the Respondent’s Counsel, the Terms of Settlement, attached as Exhibit G to the Counter affidavit does not have the force or sanction of a consent judgment of the Court. It has no probative value, and cannot be acted upon by the Court.

The Court may, by Order 6 Rule 9(1) of the Court of Appeal Rules, 2021 enlarge the time to file the Cross-Appellants’ brief of argument, and to deem the same as properly filed and served. The order for substitution of the deceased party may be made by this Court pursuant to Order 15(2) of the Rules. The order to amend the processes to reflect the substituted party is within the powers of the Court by Order 4 Rule 1. I do not see any substantial reason to speak against the grant of this order.

Accordingly, this application is granted as prayed. It is hereby ordered as follows:
1. Time is hereby enlarged till today for the Cross-Appellant/Applicant to file their Cross-Appellants’ brief.
2. The Cross-Appellants’ brief filed on 31/10/2011 is deemed properly filed and served today.
3. It is further ordered that the deceased 2nd Cross-Appellant shall be substituted with MRS ADETUTU ODEBUNMI in her capacity as the Executrix of the Estate of late 2nd Respondent.
4. It is also ordered that the subsequent processes in this appeal shall be amended to reflect the said MRS ADETUTU ODEBUNMI as the 2nd Cross-Appellant.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, ONYEKACHI AJA OTISI, JCA, has availed me a draft copy of the leading ruling in this application prepared by him, in which he allowed the application and granted all the four reliefs sought. In agreeing with the leading ruling, I would like to add a comment of my own on substitution of parties. One of the prayers on the motion on notice is for an order for substitution of the deceased 2nd Cross-Appellant with Executrix of his Estate. The law is trite that the Courts only have jurisdiction on juristic persons natural or artificial, upon death, a natural person loses his legal personality, and where such person is involved in litigation at the time of his death, the need for him to substituted by a living person in order to protect his interest in the litigation by way of prosecuting or defending the action cannot be over emphasized. Restating the general principle of law relating to substitution in the case of IN RE Apeh & Ors vs. PDP & Ors (2017) LPELR-42035 (SC), Muhammad, JSC, (now CJN) postulated AT pages 35-36 thus:
“The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part anymore in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased. See Eyesan v. Sanusi (1984) 4 SC 115 at p. 137. Bankruptcy of one of the parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances.”

For this reason and the fuller reasons embodied in the leading ruling, I also grant the application and adopt the orders made by my Lord.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: Before now. I had carefully read in advance the ruling just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA I agree with the reasoning and conclusion reached thereof.

In as much as the Rules of Court usually stipulate the time within which certain procedural steps ought to be taken, they also make provision for enlargement of time in the event of a default. An application for enlargement of time within which to take any step in the proceedings, seeks the exercise of the Court’s discretionary powers. Where the Court exercises its discretionary powers, it must do so judicially and judiciously with due regard to all the circumstances of the case. See ADENIYI ANOR VS TINA GEORGE INDUSTRIES LTD & ORS (2019) LPELR-48891(SC), ADIGWE VS. FRN (2015) 18 NWLR (1490) 105 AT 133-134 F.A, WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 45, UKACHUKWU VS P.D.P & ORS (2013) LPELR-21894 (SC) AT 37 C. D.

In the instant appeal, my learned brother has carefully analysed all the circumstances surrounding this application and I am in agreement with his analysis.

I hereby equally grant this application and abide by all the orders made by my learned brother.