ETA NOMINES LTD & ANOR v. STANBIC IBTC BANK (2020)

ETA NOMINES LTD & ANOR v. STANBIC IBTC BANK

(2020)LCN/14037(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/796M/2017(R)

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

1. ETA NOMINES LIMITED 2. MR. EMMANUEL AYEBAENEMI ARMAH APPELANT(S)

And

STANBIC IBTC BANK PLC RESPONDENT(S)

RATIO

CONDITIONS FOR THE APPLICATION FOR EXTENSION OF TIME

In the case of Bakare v. Oduneye (supra) cited by the Applicants’ Counsel, this Court per Nwodo, JCA. (of blessed memory) stated that –
“An application for extension of time requires the exercise of the discretionary power of the Court and like every other discretionary power, must be exercised judicially and judiciously, that is in accordance with the law and then exercise of sound judgement founded on the intellectual prowess of the judge.” Wali, JSC, speaking for the Supreme Court in the case of Hon. Justice Kalu Anyah v. African Newspapers of Nig. Ltd (1992) 6 NWLR (Pt. 247) 319 @ 334 had said that –
“In a question of discretion, the Court exercising it cannot be bound by a previous decision, for that would be putting an end to the discretion… You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court; for the moment you do that, the discretion is fettered.”
The Apex Court restated and affirmed this position in numerous later decisions, including Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 543; A. G. Rivers State v. Ude (2006) NWLR (Pt. 1008) 436 @ 461; Dokubo-Asari v. FRN (2007) 5-6 SC, 150; UBN, Plc v. Astra Builders W. A. Ltd (2010) 5 NWLR (Pt. 1186) 1; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577.
The principle laid in these final authorities in the Nigerian Judicial hierarchy is that a Court exercising a judicial discretion in a matter or application is not bound by or to follow a previous decision of another Court, (even a higher Court) in respect of the exercise of its own discretion in the matter or application before it. Although lower Courts are usually guided by the general principles laid down by the higher Courts in the exercise of judicial discretion, no hard and fast rules can be laid down to be followed and applied in all cases where a judicial discretion is to be exercised by a Court, for to do so, will put an end to the discretion. So strictly speaking, the doctrine and principle of stare decisis, is not applicable in matters of the exercise of judicial discretion of a Court, which should completely depend on the peculiar facts and circumstances of each case. See Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; Odusote v. Odusote (1971) 1 ALLNLR, 219 @ 22; Ajuwa v. SPDCN Ltd (2011) LPELR-8243(SC). PER GARBA, J.C.A.

WHETHER OR NOT THE TWIN CONDITIONS TO BE MET BY AN APPLICANT FOR AN APPLICATION FOR EXTENSION OF TIME MUST BE SATISFIED TOGETHER

As shown earlier, the twin conditions or requirements to be met by an Applicant to be entitled to grant of the application are conjoined and must be satisfied together; conjunctively and that failure to meet or satisfy any one of them, will as a matter of course, lead to the failure and collapse of the application. In Daughters of Divine Love Congregation v. Ugwu (2013) LPELR-22896(CA) the position was restated and maintained that: –
“…upon a comprehensive analysis of the authorities, the bottom line comes to this: two conditions must exist and be fulfilled concurrently before a Court like ours can exercise its undoubted discretion sympathetically and favourably to grant application of this nature.” In addition, see Re: Adewumi & Ors (1988) 3 NWLR (Pt. 82) 483; C. C. B. Nig. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630; Ogundimu v. Kasunmu (2006) ALL FWLR (Pt. 326) 207; Ojukwu v. Onyeador (1991) 7 NWLR (Pt. 203) 286; ANPP v. Al-Bishir (2010) 8 NWLR (Pt. 1198) 118 @ 146; Eze v. Eze (2010) LPELR-4546(CA). PER GARBA, J.C.A.

THE TWIN CONDITIONS THAT MUST BE EXERCISED IN THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME

Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or actions under Order 16.
(2) Every application for an 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 period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be amend to the notice of appeal.” (Emphasis supplied)
From the above provision, it is relevant that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of granting the application. The two preconditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period: and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without time other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42, HOLMAN BROS (NIG) LTD vs. KIGO (1980) 8-11 SC 43. KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (PT 1208) 261, NIGERIAN LABORATORY CORPORATION vs. PMB LTD (2012)15 NWLR (PT 1324) 505, ISIAKA vs. OGUNDIMU (2006) LPELR (1552) 1 at 10-11 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgement): This application, filed on the 20th June, 2017 seeks the following reliefs from the Court: –
“1. An order of Court extending the time within which the Applicants may appeal against the judgment of Hon. Justice Olateru Olagbeji of the High Court, of Lagos State in Suit No: ID/497/1999 Chief Sylvanus Agbareh & Anor vs. ETA Nominees Service Ltd & Ors delivered on 30th September, 2013.
2. An order deeming the Notice of Appeal dated 26th June, 2014 and filed in this matter, as duly filed;
3. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The concise grounds upon which the reliefs are predicated are that:-
“i. Delay in filing Notice of Appeal was due to ill-health of the 2nd Applicant who is the Chief Executive of the first Applicant Company.
ii. That the first applicant is the alter ego of the 1st applicant company.”

An initial Affidavit of Eleven (11) paragraphs; deposed to by Daniel Osai on the 20th June, 2017 and a reply Affidavit of Nine (9) paragraphs deposed to

by the 2nd Applicant on the 14th September, 2017 were filed in support of the application.

In reaction to the application, the Respondent filed a counter Affidavit of Nine (9) paragraphs on 10th July 2017, deposed to by Prince Nwankwo.

Pursuant to the order of the Court, the parties filed written Addresses in respect of the application which were adopted at the oral hearing on the 22nd January, 2020.

In the Applicants’ Address filed on 14th May, 2019, it submitted that the Applicants have shown good reasons for the delay in bringing the appeal on the ground of the ill-health of the 2nd Applicant, who is the alter ego of the 1st Applicant. Cases, including Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 508 and Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467 on the attitude of the Courts to the length of delay and factors to be considered in applications of this nature, were cited and it is submitted that the Applicant’s ill health and proof of same is a good and substantial reason for the delay in appeal against the Ruling of the Lower Court.

In conclusion, the Court is urged to grant the application as prayed.

For the Respondent, it is argued in the Respondent’s Address filed on the 3rd June, 2019, that the Applicants have failed to place sufficient materials before the Court to satisfy the two (2) conjunctive requirements for the grant of the application. Bakare v. Oduneye (2010) LPELR-3844(CA) and Ikenta Best Nig. Ltd v. A. G., Rivers State (2008) 6 NWLR (Pt. 1084) 612 are referred to and it is submitted that the reasons given for the delay in appealing are not good and substantial since the 1st Applicant is a Company that should have more than one (1) directors who should run its affairs and not a sole alter ego, as the 2nd Applicant is said to be. In addition, it is contended that none of the grounds contained on the proposed Notice of Appeal raises any arguable or recondite points of law, as stated in Abubakar v. Sama (2018) LPELR-46789(CA), for the grant of the application.
The Court is urged, in conclusion, to dismiss the application.

In the Reply Address, it is maintained that as the alter ego of the 1st Applicant, the 2nd Applicant is the only person who could authorize an action on its behalf even though there may be other directors.

Ejikam v. Devon Ind. Ltd (1998) 1 NWLR (Pt. 534) 417 on position of a Managing Director of a Company and Trenco Nig. Ltd v. African Real Estate Ltd (1978) 1 LRN, 146 @ 153 on the concept of alter ego of a company, are cited for the submission. On the authority of CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369, it is submitted by counsel that at this stage, the merit of the appeal does not arise for consideration.

Resolution
In the case of Bakare v. Oduneye (supra) cited by the Applicants’ Counsel, this Court per Nwodo, JCA. (of blessed memory) stated that –
“An application for extension of time requires the exercise of the discretionary power of the Court and like every other discretionary power, must be exercised judicially and judiciously, that is in accordance with the law and then exercise of sound judgement founded on the intellectual prowess of the judge.”

Wali, JSC, speaking for the Supreme Court in the case of Hon. Justice Kalu Anyah v. African Newspapers of Nig. Ltd (1992) 6 NWLR (Pt. 247) 319 @ 334 had said that –
“In a question of discretion, the Court exercising it cannot be bound by a previous decision, for

that would be putting an end to the discretion… You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court; for the moment you do that, the discretion is fettered.”
The Apex Court restated and affirmed this position in numerous later decisions, including Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 543; A. G. Rivers State v. Ude (2006) NWLR (Pt. 1008) 436 @ 461; Dokubo-Asari v. FRN (2007) 5-6 SC, 150; UBN, Plc v. Astra Builders W. A. Ltd (2010) 5 NWLR (Pt. 1186) 1; Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577.
The principle laid in these final authorities in the Nigerian Judicial hierarchy is that a Court exercising a judicial discretion in a matter or application is not bound by or to follow a previous decision of another Court, (even a higher Court) in respect of the exercise of its own discretion in the matter or application before it. Although lower Courts are usually guided by the general principles laid down by the higher Courts in the exercise of judicial discretion, no hard and fast rules can be laid down to be followed and applied in all cases where a judicial discretion is to be exercised

by a Court, for to do so, will put an end to the discretion. So strictly speaking, the doctrine and principle of stare decisis, is not applicable in matters of the exercise of judicial discretion of a Court, which should completely depend on the peculiar facts and circumstances of each case. See Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632; Odusote v. Odusote (1971) 1 ALLNLR, 219 @ 22; Ajuwa v. SPDCN Ltd (2011) LPELR-8243(SC).

This application was brought pursuant to among others, Order 6 of the Court of Appeal Rule, 2016 which in Rule 9 (2) provides that: –
“9(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit is setting forth good and substantial reasons 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal”
In simple terms, these provisions require that an application of this nature shall be supported by an Affidavit: –
(a) Setting forth, good and substantial reasons

for failure to appeal within the prescribed period, and
(b) by grounds of appeal which, prima facie, show good cause why the appeal should be heard by the Court.
As may be easily observed, these requirements or conditions are twins which are conjoined and conjunctive to be fulfilled or satisfied together by the facts deposed to in the Affidavit filed in support of the application, if it is to succeed and deserve to be granted by the Court. In the very weighty words of Tobi, JSC (of blessed memory) in the case of Nig. Lab, Corp. v. Pacific Merchant. Bank Ltd (2012) LPELR-7875(SC):
“The two, thus, must stand fall together ….. that it is trite law that where one of the two inseparable twins/requirement(s) in such an application has failed to satisfy the requirement of the law, the other requirement per force, must also give way as it cannot stand alone.” Among other cases, the Learned Prof. of Law and Law Lord referred to George v. George (1994) 3 N. A. C. R, (1970) @ 85; Acme Builders Ltd v. K. S. W. B. (1999) 2 NWLR (Pt. 590) 288 @ 312; Ohwovoriole, SAN v. FRN (2003) 1 SC (Pt1) 1 and Univ. of Lagos v. Olaniyan (1985)

1 NWLR (Pt. 1) 156 @ 175 for the view.

In this application, the primary reasons for the failure by the Applicants to appeal within the prescribed time are set out in paragraphs 3, 5 and 6 of the initial Affidavit in support thereof, as follows: –
“3. That the second Applicant is the Chief Executive of the first Applicant Company.
5. That at the time the judgment was delivered; the 2nd Applicant was experiencing some health challenges particularly in relation to his failing sight for which he had to undergo surgery.
6. That the 2nd Applicant’s health condition only recently improved, which development has given him the presence of mind to attend to this appeal. Attached herewith and marked Exhibits B and C are copies of some of his medical records.”
The crucial question is whether in the peculiar circumstances of the case, these reasons are good and substantial for failure to appeal within the prescribed in order to satisfy the first of the twin conditions or requirements for the grant of the application. Ordinarily, ill-health or illness on the part of an Applicant or his counsel or even sometime both, along with

other relevant and material factors, would constitute and qualify as good and substantial reasons for the delay or failure to appeal within the prescribed period of ninety (90) days under the provisions of Section 24(2) of the Court of Appeal Act, 2004.
As can be seen from the facts in the Applicants’ affidavit, the ill-health was that of the 2nd Applicant and of sight problems and a copy of the medical record attached to the Affidavit as Exhibit B, shows that the 2nd Applicant was diagnosed with Advance glaucoma on 23rd August, 2013 and was to undergo some investigations later. This record shows clearly that even before the diagnosis on 23rd August 2013, the 2nd Applicant has had the problem with his sight for the glaucoma to be “Advanced glaucoma”.
The judgment the two (2) Applicants seek to appeal against, which is attached to the Supporting Affidavit, as Exhibit A1, was delivered on 30th September 2013, as stated in paragraph 4 of the Affidavit. So even before the judgement; during the pendency of the case, the 2nd Applicant had problem with his sight due to the advanced glaucoma he was diagnosed with, but the case proceeded

to judgement.
Although the 2nd Applicant is said to be the Chief Executive of the 1st Applicant, which is a separate legal entity and personality, in law, see AIB Ltd v. Lee & Tee Ind. (2003) 7 NWLR (Pt. 819) 366 @ 395; Williams v. Edu (2002) 3 NWLR (Pt. 754) 400 @ 411; Erebor v. Major & Co. Nig. Ltd (2001) 5 NWLR (Pt. 706) 300 @ 309, Section 299 of the Companies and Allied Matters Act, 2004, it is nowhere in the affidavit shown that he was the only person who had the requisite authority to instruct the filing of an appeal against a judgement in which both Applicants are separate parties. In addition, the problem of sight, which was not and did not occur suddenly and of the nature to incapacitate the 2nd Applicant and prevented him from giving the necessary instruction for the filing of the appeal, is not a cogent and convincing reason to constitute good and substantial reasons for failure to appeal within the period of time prescribed by the law, for the purpose of this application.
In the circumstances, the facts set out in the Affidavit of the Applicants in support of this application do not show good and substantial reason for the failure

to appeal within the time stipulated by the law and has failed to satisfy the first requirement or condition to warrant the grant of the application.

LPELR-4546(CA).
In the above premises, the application, for failure by the Affidavit in support of thereof to show good and substantial reasons for the delay in filing the appeal, is bound to fail for lacking in merit.
In the circumstance, the duty to consider the second requirement of showing good cause why the appeal should be heard by the Court is abated by the failure to satisfy the first condition or requirement for the grant of the application.

However, to fulfill all righteousness, I have perused the seven (7) proposed grounds on what is headed “NOTICE OF APPEAL”, attached to the Affidavit in support of the application and I agree with the Learned Counsel for the Respondent when he said the grounds of appeal do not show good cause why the appeal should be heard by the Court as the complaints therein are essentially on the appraisal of the admitted facts on the basis of which the evidence placed before the Lower Court was assessed for the findings in the judgement.

The grounds do not raise any real triable issue(s) which show good cause why the appeal should be heard.

In the result, the Applicants’ grounds of

appeal do not satisfy or meet the 2nd twin-condition for the grant of this application.

On the whole, I find no merit in the application and dismiss it accordingly.
Parties to bear their respective costs of prosecuting the application.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or actions under Order 16.
(2) Every application for an 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 period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be amend to the notice of appeal.” (Emphasis supplied)
From the above provision, it is relevant that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in

favour of granting the application. The two preconditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period: and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without time other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42, HOLMAN BROS (NIG) LTD vs. KIGO (1980) 8-11 SC 43. KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (PT 1208) 261, NIGERIAN LABORATORY CORPORATION vs. PMB LTD (2012)15 NWLR (PT 1324) 505, ISIAKA vs. OGUNDIMU (2006) LPELR (1552) 1 at 10-11 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21.
I was privileged to have read in draft the leading Ruling of my learned brother, Mohammed Lawal Garba, JCA., which has just been delivered and I agree that the Applicants did not satisfy the twin conditions in order for discretion to be exercised in their favour by a grant of the application. From the Applicants’ affidavit good and substantial reasons have

not been given for failure to appeal within the prescribed period: NGERE vs. OKURUKET ‘XIV’ (2014) 11 NWLR (PT 1417) 147 at 176, KUSONG vs. WUTAN (2015) LPELR (40625) 1 at 34-35 and YUSUF vs. KURA (2018) LPELR (46686) 1 at 4-6. Furthermore, there is nothing in the proposed ground of appeal which will task the intellect and reasoning faculties of an appellate judge such that it can be said that the grounds of appeal prima facie show good cause why the appeal should be heard. See OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178.
It is informed by the foregoing reasoning and the elaborate and sapient reasoning in the leading Ruling that I equally join in dismissing the application filed on 20th June 2017 for being devoid of merit. I abide by the order as to costs contained in the leading Ruling.

JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the Ruling just delivered by my learned brother MOHAMMED LAWAL GARBA JCA and I adopt the Ruling as mine with nothing further to add.

Appearances: