Stanbic Ibtc Bank Plc V. Longterm Global Capital Limited & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALINJE, J.S.C.

By its motion dated 20th March, 2015 and filed on the 23rd March, 2015, the Applicant herein seeks for the following reliefs:-

1. AN ORDER enlarging the time within which the Appellant/Applicant may apply for leave to appeal to this Court against the judgment of the Court below in Appeal No. CA/L/194/2009 (Stanbic Ibtc Bank Plc v. Longterm Capital Ltd & Anor) on grounds of facts and/or mixed law and facts as contained in grounds 1, 2, 3, 4, 5, 7 and 8 of the Amended Notice of Appeal marked Exhibit Stanbic 1.
2. AN ORDER granting leave to the Appellant/Applicant to appeal to this Court against the judgment of the Court below in Appeal No. CA/L/194/2009 (Stanbic Ibtc Bank Plc v. Longterm Capital Ltd & Anor) on grounds of facts and/or mixed law and facts as contained in grounds 1, 2, 3, 4, 5, 7 and 8 of the Amended Notice of Appeal marked Exhibit Stanbic 1.
3. AN ORDER enlarging the time within which the Appellant/Applicant may appeal to this Court on grounds of facts and/or mixed law and facts as contained in grounds 1, 2, 3, 4, 5, 7 and 8 of the Amended

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Notice of Appeal marked Exhibit Stanbic 1.

4. AN ORDER deeming the Amended Notice of Appeal dated 4th December, 2013 but filed on 6th December, 2013 as having been properly filed in so far as it contains the said Grounds 1, 2, 3, 4, 5, 7 and 8.

The grounds upon which this application is predicated are as follows:-

GROUNDS OF THE APPLICATION:

1. The grounds of appeal raise issues of high constitutional importance.
2. Section 233(3) of the Constitution prescribes leave to appeal on questions of fact and or mixed law and fact.
3. The time prescribed for seeking leave to appeal on questions of mixed law and fact has expired.
4. This Court has the power to enlarge the time and grant leave to the Applicant to appeal on grounds of mixed Law and fact.

The applicant’s application is supported by a 12 paragraphs affidavit deposed to by Oyetola Olunowo, a legal practitioner in the law firm of Ayanlaja, Adesanya & Co. counsel to the Appellant/Applicant. The Respondents challenged this application by filing a fourteen paragraphs counter affidavit dated 13th April, 2015. Parties filed and exchanged written addresses in line with

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relevant rules of this Court. The applicant’s written address settled by Mr. O. Ayanlaja, SAN learned senior counsel to the applicant is dated 20th March, 2015 and it is attached to the motion. Learned senior counsel formulated a sole issue for determination of this application, and it reads as follows:-

“Whether having regard to the facts of this case the prayers being sought by the applicant ought not to be granted.”

For the Respondent, a written address titled “Respondent’s Reply Brief in opposition to the Appellant’s/Applicant’s Motion on notice dated 20th March, 2015” settled by Chief F. O. Fagbohungbe SAN dated 13th April, 2015 was filed. At page 10 of the written brief, learned senior counsel, formulated two issues for determination of this motion. They read as follows:

1. Having regard to the peculiar circumstance of this case, whether the Applicant’s application constitutes an abuse of Court process
2. Whether the applicant has placed sufficient materials before this Honourable Court to warrant a grant of the orders sought

The Appellant’s/Applicant’s reply brief of argument in respect of the motion herein is dated and filed

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on the 22nd March, 2017.

In his argument in support of the prayer for extension of time, learned senior counsel submitted that the original notice of appeal was filed within time, and that the present application is meant to regularize certain grounds of appeal in that notice which are thought to be grounds of mixed law and facts. In a further argument, learned senior counsel submitted that the averments in the supporting affidavit have shown that there are good and sufficient reasons why this appeal was not filed within the prescribed period. In aid, he cited the authority in Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467. On the prayer for a deeming order, learned senior counsel relied on the case of Erisi v. Idika (1987) 18 NSCC (PT. 11) 1201 at 1211 – 1212 in urging this Court to deem the Amended Notice of Appeal dated 4th December, 2013 and filed on the 6th of December, 2013 as having been properly filed.

In reply, learned senior counsel for the Respondents made reference to paragraphs 7, 8 and 9 of the counter affidavit and submitted that the Applicant has a subsisting reply brief of argument in the present proceedings where it is contended

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that grounds 1, 2, 3, 4, 5, 7 and 8 of the grounds of appeal in its amended notice of appeal are grounds of law alone and that the applicant did not require the prior leave of Court to file the said grounds of appeal.

It is learned senior counsel’s contention that the present application is an abuse of Court process as the applicant cannot approbate and reprobate at the same time and in the same proceedings. Learned senior counsel urged this Court to hold that the applicant cannot validly and competently have two subsisting and conflicting processes before this Court by which it is making two different and divergent contentions in respect of the same issue. In aid, learned senior counsel cited R-Benkay (Nig) Ltd v. Cadbury (Nig) Plc (2012) 9 NWLR (Pt. 1306) 596. Finally, on this issue, learned senior counsel urged this Court to dismiss this application on the authority of TSA Industries Ltd v. First Bank of Nigeria Plc (2012) 14 NWLR (pt. 1320).

On whether there is anything in the applicant’s affidavit to show that this application is aimed at correcting any error or a mistake by regularizing the applicant’s relevant grounds of appeal, learned senior

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counsel says, there is none. It is learned senior counsel’s submission that the present application is based on speculation and/or probability and not out of specific admission or acknowledgment of mistake and that this Court cannot judiciously and judicially exercise its discretion on the basis of mere speculation.

On the second issue for determination of the application, learned senior counsel submitted that the applicant did not make any attempt or deliberately failed and/or neglected to explain why the applicant did not file the present application for leave within the prescribed period as stipulated by Section 27(2)(a) of the Supreme Court Act. Learned senior counsel urged this Court to hold that the applicant has not made out a good and satisfactory case to warrant the grant of the order for enlargement of time sought by him. In aid, learned senior counsel cited Chime v. Onwuegby (2013) 14 NWLR (Pt. 373) 58 and drew the Court’s attention to Order 2 Rule 31(1) and (2), Paragraphs 8(c) and (d) of the affidavit in support of the motion on notice and contended that the said paragraph of the affidavit in support, which forms the fulcrum or crux of the

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applicant’s affidavit evidence are extraneous matters within the contemplation of Section 115(2) of the Evidence Act.

In a further argument, learned senior counsel submitted that paragraph 8(c) of the supporting affidavit is a legal argument which can only be urged upon the Court by way of address while paragraph 8 (d) is a conclusion and/or legal argument as such the said paragraph 8(c) and (d) of the supporting affidavit is incompetent and should therefore be struck out. According to the learned senior counsel, if paragraph 8 is struck out, there will be no affidavit evidence upon which this Court can exercise its discretion in favour of the Applicant.

Finally, learned senior counsel urged this Court to dismiss the application.

Learned senior counsel for the Applicant argued in the reply brief that an applicant who has argued in one breath that he does not require leave to appeal, is not precluded in law from applying in the alternative for leave and extension of time to appeal. In support of his position, learned senior counsel cited Egbe v. Adefarasin (1987) 1 NWLR (PT. 47) 1 at 14; Phillips v. Phillips & Ors (1878) 4 QBD 127 at 134;

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Berger v. Greenwood (1878) 3 Ex. D 251 at 255; MV Caroline Maersk v. Nokoy Investment Limited (2002) 6 SC (Pt. 2) 10 at 19 – 20; Xtoudos Services Ltd v. Taisei WA Limited (2006) 15 NWLR (Pt. 1003) 533 at 555-556.

Learned senior counsel urged that Court to hold that the case ofR-Benkay v. Cadbury Nigeria Plc (supra) is inapplicable in this application because it is related to the use of two similar processes to pursue the same right.

On whether, the applicant has placed sufficient materials before the Court to warrant a grant of this application, learned senior counsel submitted that the 2nd, 6th and 8th grounds of appeal in the amended notice of appeal raised jurisdictional issue bordering on the violation of the applicant’s right to fair hearing as guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as such the grounds of appeal alone without any reason are sufficient to entitle the applicant to a grant of an order for extension of time. In aid, learned senior counsel cited Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527; Nwora v. Nwabueze (2011) 15 NWLR (PT. 127) 467.

Now, a grant or refusal of this

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application is purely within the discretionary power of this Court. The law is settled that the discretion of this Court must at all-time be exercised not only judicially but also judiciously on sufficient materials. See Udensi v. Odusote (2003) 6 NWLR (Pt. 817) 545 at 558 Para (b); Ogbuechi v. Governor of Imo State (1995) 9 NWLR (pt. 417) 53; University of Lagos v. M.I Aigoro (1985) 1 NWLR (PT. 1) 143 at 148.

The appellant’s learned senior counsel argued the application on the basis of the issues formulated by him and seemed to have abandoned the supporting affidavit. This is clearly not correct. Parties to a motion are bound to restrict their submissions within the confines of the grounds upon which the application is predicated and the affidavits in support of the application. Where issues formulated by parties do not arise from the grounds and the affidavit in support, any argument thereon will certainly be at large and is of no effect.

The grounds upon which this application is predicated as set out by the applicant are as follows:-

1. The grounds of appeal raise issues of high constitutional importance.
2. Section 233 (3) of the

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Constitution prescribes leave to appeal on questions of fact and mixed law and fact.

3. The time prescribed for seeking leave to appeal on questions of mixed law and fact has expired.
4. This Court has the power to enlarge the time and grant leave to the applicant to appeal on grounds of mixed law and fact.

Now, having read through the paragraph of the affidavit, I am of the view that the only paragraph that has given reasons for the applicant’s failure to bring this application within the prescribed period is Paragraph 8 (c) which I reproduce hereunder as follows:

“Although the Appellant has filed its reply to the respondent’s brief on 23rd December, 2014 and argued at pages 10 – 12 that the grounds of appeal being attacked by the respondents are all grounds of law, however the applicant is desirous, out of abundance of caution, of seeking leave of this Court to Appeal on those grounds of mixed law and fact.”

Whether this paragraph constitutes good and substantial reason for failure to appeal within time is a question to be addressed through the submissions of learned counsel on both sides. Before I deal with this question, I want to

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take liberty to deal with certain issues that have been raised by the respondents in their brief of argument. The first issue is whether this application constitutes an abuse of Court process I do not think that the present application constitutes an abuse of Court process. It is true that the applicant had earlier in its reply brief contended that the 1st, 2nd, 3rd, 4th 5th, 7th and 8th Grounds of Appeal in its amended notice of appeal are grounds of law. However, the applicant in this application is asking for alternative, in case the said grounds of appeal are not grounds of law alone. The applicant is by law permitted to ask for alternative relief by seeking for extension of time to appeal. In Xtoudos Services Nigeria Ltd & Anor v. Tarsei (W.A) Ltd & Anor (2006) 16 NWLR (pt. 1003) 533 at 555 paras F-G, which was cited and relied upon by learned counsel for the appellant/applicant, this Court had this to say:-

“It needs to be stressed that there is nothing wrong for a party in an action to include in his pleading two or more inconsistent sets of material facts and claim reliefs there under in the alternative. It is proper to do so… But once

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one of them is granted, the other cannot be granted….Thus where there is a claim in the alternative, the trial Court will first consider whether or not the principal or main claim ought to have succeeded. It is only after the Court may have found that it could not for any reason grant the principal claim that it would only consider the alternative claim. This is settled law.”

See S.C.E.I v. Odunewo & Anor (1965) 2 ALL NLR 135; Metal Construction (W.A) Ltd. V. Chief Aboderin (1998) 6 SCNJ 161 at 170, (1998) 8 NWLR (pt. 563) 538; Agidigbi v. Agidigbi & Ors (1996) 6 NWLR (Pt. 454) 303; Merchantile Bank of Nig. Ltd v. Adalma Tanker & Bunkering Services Ltd (1990) 5 NWLR (Pt. 153) 747; Gaji & Ors v. Paye (2003) 5 SCNJ 20 (2003) 8 NWLR (Pt. 823) 583. I am of the firm view that, since this application is merely asking for alternative, it does not constitute an abuse of the Court’s process. I therefore do not think it is necessary to go into the definition of the phrase “abuse of Court process”, since this application is not meant to insult any Court process nor is it meant to annoy the applicant’s opponents. The application is made

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to regularize an existing process. I agree with learned appellant’s counsel that the case of R-Benkay v. Cadbury Nigeria Plc (Supra) is irrelevant and unhelpful to the respondents.

On whether there is anything in the applicant’s affidavit to show that this application is aimed at correcting any error or a mistake by regularizing the appellant’s relevant grounds of appeal, I do not agree with learned senior counsel for the respondent that there is nothing in the affidavit to that effect. I have stated elsewhere in this judgment that the prayers of the applicant is for alternative remedy. Once an applicant asks for alternative relief, it is not within his prerogative to declare the main relief a mistake or error.

That right or prerogative belongs to the Court that will choose and pick whichever alternative is right. The question of whether there is anything in the applicant’s affidavit to show that this application is aimed at correcting any error or a mistake in the applicant’s relevant grounds of appeal does not arise at all. It is sufficient for the applicant to show the alternative by requesting for leave in respect of the ground of appeal, which

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it has reflected in its amended notice of appeal.

In this Court, every application for extension of time to appeal shall be accompanied by an affidavit setting forth good and substantial reason for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. See Order 2 Rule 31 of the Supreme Court Rules, 2014.

It follows therefore that the applicant must:-

1) Give good and substantial reasons for failure to appeal within the prescribed period.

2) Grounds of appeal must prima facie show good cause why the appeal should be heard.

The two conditions must be satisfied conjunctively.

See Okere v. Nkem (1992) 4 NWLR (pt. 234) 182; Ibodo & Ors v. Enarofia & Ors 1980 NSCC 195.

In the instant application, the applicant, by paragraphs 4 and 5 of the supporting affidavit has clearly shown that its appeal against the judgment delivered on the 10th May, 2013 was timeously filed on the 13th May, 2013. Its application is to regularize the notice of appeal filed on the 13th May, 2013. In an application of this nature an applicant is not expected to strictly

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satisfy the twin conditions enumerated above before the Court can exercise its discretion in his favour.

It is sufficient to show that the applicant has shown that he is not sure whether a ground of appeal is of law or mixed law and facts. This is clearly shown at paragraph 8(c) of the supporting affidavit.

In his final address, learned senior counsel for the Respondents submitted that paragraph 8(c) of the supporting affidavit is incompetent on the ground that it is a legal argument which can only be urged upon the Court by way of address.

Learned counsel further submitted that paragraph 8(d) of the supporting affidavit is a conclusion and/or legal argument, as such it is also incompetent and ought to be struck out. In Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270 at 289 paras D – F. this Court, per Uwaifo held:-

“Prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence while conclusions should not be drawn by witness but left for the Court to reach.”

This is clearly the position of the law, to which I entirely agree.

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However, where a party alleges that certain paragraphs offend the provisions of Section 115 (2) of the Evidence Act, the responsibility is on that party to explain how the paragraphs of the affidavit are inconsistent with the section of the Evidence Act. It is not enough for a party to allege that certain paragraphs are inconsistent with the provisions of the Evidence Act.

Learned counsel for the Respondent has failed to explain how paragraph 8 (c) and (d) constitute argument and conclusion. I therefore discountenance learned senior counsel’s argument on that score.

Now, the effect of denial of extension of time constitutes a big punishment for a potential appellant as he would have lost the chance of having his appeal heard on the merit. To deny a party an opportunity of having his appeal heard, the appellate Court must have a very compelling reasons to do so. For such a denial will be as good as dismissing an appeal. It is always more just for an appellate Court to exercise its discretion towards hearing the appeal in order to resolve the dispute between the parties once and for all. It is for the reasons I have set out in this ruling that I find

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merit in this application which I accordingly grant as prayed.

That is:-

1. The time within which the Appellant/Applicant may apply for leave to appeal to this Court against the judgment of the Court below in Appeal No. CA/L/194/2009 Stanbic IBTC Bank Plc v. Longterm Capital Ltd & Anor on grounds of facts and/or mixed law and facts as contained in ground 1, 2, 3, 4, 5, 7 and 8 of the Amended Notice of Appeal Marked Exhibit Stanbic 1.
2. I hereby grant leave to the Appellant/Applicant to appeal to this Court against the judgment of the Court below in Appeal No. CA/L/194/2009 Stanbic IBTC Bank Plc v. Longterm Capital Ltd & Anor on grounds of facts and/or mixed law and facts as contained in ground 1, 2, 3, 4, 5, 7 and 8 of the Amended Notice of Appeal Marked Exhibit Stanbic 1.
3. Time is hereby enlarged to today the 23rd June, 2017 for the Appellant/Applicant to appeal to this Court on ground of facts and/or mixed law and facts as contained in grounds 1, 2, 3, 4, 5, 7 and 8.
4. The clean copy of the Amended Notice of Appeal dated 4th December, 2013, but filed on 6th December, 2013 is deemed properly filed and served today.

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I make no order as to costs.

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SC.535/2013(R)