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Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

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➥ CASE SUMMARY OF:
Stanbic IBTC Bank Plc V. Longterm Global Capital Limited & Anor. (SC.535/2013(R), 23 June 2017)

by Branham Chima.

➥ ISSUES RAISED
Extension of time;
Abuse of process;

➥ CASE FACT/HISTORY
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 and 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 and 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 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.

➥ ISSUE(S) & RESOLUTION(S)
[APPLICATION ALLOWED]

↪️ I. Whether the Applicant’s motion should be granted?

RESOLUTION: IN APPLICANT’S FAVOUR.
[THIS APPLICATION IS TO REGULARISE THE NOTICE OF APPEAL
‘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 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.’

Available:  Union Bank of Nigeria Plc v Clement Nwankwo (2019) - SC

COURT SHOULD EXERCISED DISCRETION TOWARDS GRANTING EXTENSION OF TIME
‘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 merit in this application which I accordingly grant as prayed.’]
.
.
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✓ DECISION:
‘The filing of this application is not an abuse of process as it was filed in the alternative to the earlier application in the event it turns out that the appellant/applicant needs leave to appeal.’

➥ FURTHER DICTA:
⦿ SUBMISSION NOT BASED ON GROUND OF MOTION AND AFFIDAVIT WILL BE AT LARGE
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. — P.A. Galinje JSC.

⦿ APPLICANT CAN ASK FOR ALTERNATIVE RELIEFS BY SEEKING EXTENSION OF TIME TO APPEAL
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 and Anor v. Tarsei (W.A) Ltd and 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 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 and 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 and Ors (1996) 6 NWLR (Pt. 454) 303; Merchantile Bank of Nig. Ltd v. Adalma Tanker and Bunkering Services Ltd (1990) 5 NWLR (Pt. 153) 747; Gaji and 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 to regularize an existing process. — P.A. Galinje JSC.

Available:  Enebeli v. State (2021) - SC

⦿ PARTY IS TO SHOW HOW THE PARAGRAPHS OF AN AFFIDAVIT ARE INCONSISTENT WITH THE EVIDENCE ACT
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. — P.A. Galinje JSC.

Available:  Dim Chukwuemeka Odumegwu Ojukwu v. Alha Ji Umaru Musa Yar'adua (2009)

⦿ WHAT IS ABUSE OF PROCESS
There is abuse of process when a party uses the issue of judicial process to the irritation and annoyance of the other party and in the process disrupts the smooth administration of justice. A proceeding that is frivolous or oppressive is an abuse of process, e.g. filing multiplicity of actions on the same subject matter against the same opponent on the same issue. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) p. 156. Agwasim v. Ojichie (2004) 10 NWLR (Pt. 882) p.613; Okorodudu v. Okoromadu (1997) 3 SC p.21. — O. Rhodes-Vivour JSC.

⦿ SAFEST THING IS TO APPLY FOR MIXED LAW & FACT
It is usually difficult to out rightly determine whether a ground of a law is purely one of law alone or is of mixed law and fact. Where a counsel is confronted with such difficulty, the safest thing for him to do, is to apply for leave on the ground or grounds of mixed law and facts. — P.A. Galinje JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Paul Adamu Galinje JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. O. Ayanlaja SAN.

⦿ FOR THE RESPONDENT(S)
Chief F.O. Fagbohungbe SAN.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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