Stanbic Ibtc Bank Plc V. Longterm Global Capital Ltd & Ors (2021)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C. 

By a Motion on Notice filed on the 21st of September, 2020, the Appellant/Applicant prayed this Court for the following:

A. An Order enlarging the time within which the Applicant may file an additional ground of appeal bordering on law alone as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application.

B. An Order granting leave to the Applicant to file an additional ground of appeal bordering on law alone as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application.

C An Order granting the Applicant leave to raise a fresh issue on appeal bordering on the lack of subject matter jurisdiction of the Federal High Court, Lagos Judicial Division (“Trial Court”) to entertain Suit No. FHC/L/CS/1383/2012, which culminated in this appeal [as contained in Ground One of the Proposed Further Amended Notice of Appeal attached to the affidavit in support of this application].

D. An Order granting leave to the Applicant to further amend the Amended Notice of Appeal dated 18/02/20 and filed on 02/03/20 to incorporate the additional ground of appeal bordering on lack of subject matter jurisdiction of the trial Court as shown in the Proposed Further Amended Notice of Appeal.

E. An Order granting leave to the Applicant to re-number the grounds of appeal as shown in the Proposed Further Amended Notice of Appeal.

F. Such further or other Order or Orders as this Honourable Court may deem fit to make in the circumstances.

TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows:

(a) By Section 233(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this honourable Court has the jurisdiction to entertain an appeal which is predicated on the proposed additional ground of appeal contained in Ground One of the Proposed Further Amended Notice of Appeal;

(b) By Section 27(2) of the Supreme Court Act, the Applicant had three months from the date of the delivery of the judgment of the Court of Appeal to appeal to this honourable Court;

(c) The period of three months within which the Applicant may appeal as of right in respect of Ground One of the Proposed Further Amended Notice of Appeal has lapsed;

(d) The Applicant’s failure to appeal in respect of the jurisdictional challenge within the prescribed time is as a result of inadvertence of counsel;

(e) The proposed new ground of appeal touches on the lack of subject matter jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012, which culminated in this appeal;

(f) The Appellant’s proposed additional ground will bring before this honourable Court a fundamental issue which goes to the foundation of the proceedings of the trial Court and Court of Appeal regarding this appeal;

(g) This application discloses exceptional circumstances; and

(h) This honourable Court has the power to grant all the prayers in this application.

The application was supported by a 21 paragraph affidavit, deposed to by one Babatunde Ige, a Legal Practitioner in the Law Firm of Olaniwun Ajayi LP, Counsel to the Applicant and six exhibits marked Exhibits A-F. Paragraphs 12-16 of the affidavit are pertinent, and are hereunder reproduced:

“12. Upon further review of the processes filed on this matter, especially the Statement of Claim dated 22/11/12, filed by the 1st-4th Respondents, the Applicant’s Counsel discovered that the substance of the claim of the 1st-4th Respondents at the trial Court was to rescind the contracts for the sale of shares between the 1st-4th Respondents and the 5th Respondent on the basis of alleged vitiating factors – misrepresentation and illegality.

13. Further to Paragraph 12 above, the Applicant’s Counsel resolved to file this application in order to obtain the leave of this Honourable Court to challenge the decision of the Court of Appeal on a fresh and additional ground of appeal bordering on the lack of the jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383 which culminated in this appeal.
14. The failure to include a ground of appeal bordering on the lack of jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012 in the Appellant’s Notice of Appeal dated 09/03/18 (Exhibit C) and the Appellant’s Amended Notice of Appeal dated 18/02/20 and was filed on 02/03/20 (Exhibit D) was occasioned by inadvertence of counsel.
15. The period provided by the Rules of this honourable Court has expired.
16. The proposed additional ground of appeal is set out in ground 3.1 of the Proposed Amended Notice of Appeal. The said ground borders on the issue of lack of subject matter jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/12 which culminated in this appeal. Now shown to me and marked Exhibit E is the Proposed Further Amended Notice of Appeal.”

In reaction to the Applicant’s Motion, the 1st-4th Respondents, filed a 28 Paragraph counter-affidavit, deposed to by one Babatunde Osinbajo, a Legal Practitioner in the Law Firm of F.O. Fagbohungbe & Co, Counsel for the 1st-4th Respondents, with annexures. I consider Paragraphs 12-18 to be relevant and I reproduce them hereunder:

“12 – I know that the issue relating to the jurisdiction of the Federal High Court to entertain the 1st to 4th Respondents’ claims in Suit No. FHC/L/CS/1383/2012 was raised by the Appellant as 1st Defendant, in Paragraph 15 of its Amended Statement of Defence and also by the 5th Respondent, as 2nd Defendant, which eventually filed a Notice of Preliminary Objection to that effect in the said Court. A copy of the Appellant’s Amended Statement of Defence dated 4/12/2014 as reproduced at pages 585 to 595 in Volume II of the Record of Appeal is attached hereto and marked Exhibit “LT2”.

13 – In a well-considered ruling delivered by the Federal High Court, per Honourable Justice J. T. Tsoho (now Chief Judge) on 15/1/2014, in Suit No. FHC/L/CS/1383/2012, it was held by the Federal High Court that based on the peculiar facts and circumstances of the 1st to 4th Respondents’ case, the Federal High Court had the requisite jurisdiction to entertain the suit. Attached hereto and marked as Exhibit “LT3” is a copy of the said ruling as reproduced at pages 381 to 397 in Vol. II of the Record of Appeal.

14. – I know that after the ruling of the Federal High Court was delivered as aforesaid, both the Appellant and the 5th Respondent voluntarily and/or deliberately elected not to appeal against the said decision to the Court of Appeal.
15. – I also know that the Appellant and the 5th Respondent herein voluntarily elected to submit to the jurisdiction of the Federal High Court before the matter proceeded to plenary trial.
16. – The Appellant also deliberately and/or voluntarily elected not to appeal against the ruling relating to the jurisdiction of the Federal High Court to entertain the suit filed by the 1st to 4th Respondents even after the Federal High Court delivered its final judgment in Suit No. FHC/L/CS/1383/2012 on 14/12/2015.
17. – The same set of Counsel and/or law firm which represented the Appellant at the Federal High Court when the Federal High Court delivered its ruling on 15/1/2014 were also the set of Counsel and/or law firm which represented the Appellant in Appeal No. CA/L/427/2016 at the Court of Appeal, in respect of the appeal against the final judgment of the Federal High Court from which the present appeal emanated.
18. – I know that the failure of the Appellant to appeal against the ruling delivered by the Federal High Court on 15/1/204 to the Court of Appeal was a voluntary and/or deliberate act on the part of the Appellant and due to any inadvertence.”

The Applicant, in its 13 paragraphed reply affidavit, averred thus at Paragraph 10:

“10 – Contrary to the averments in paragraph 14, 15 and 16 of the BO Affidavit, I state as follows:

10.1 – The Appellant did not appeal the ruling because the Notice of Preliminary Objection dismissed by the trial Court was filed by the 5th Respondent and not the Appellant.

10.2 – The Appellant did not conceal the existence of the ruling from this honourable Court. The ruling forms part of the records transmitted to this honourable Court and is set out at pages 381-397 Vol. 2 of the Record of Appeal.

10.3 – The jurisdictional issue in respect of which the Appellant seeks the leave of this honorable Court borders on the subject matter jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012.

10.4 – The Appellant was precluded from consenting or acquiescing to the trial Court’s jurisdiction to entertain Suit No. FHC/L/CS/1383/2012, and

10.5 – Upon a re-examination of the 1st-4th Respondents’ Statement of Claim filed on 22/11/12 and the characterization of the relationship of the Appellant and the 5th Respondent by the Court of Appeal as a master-servant relationship in page 54 of the judgment of Court of Appeal delivered on 09/03/18, the Appellant decided to seek the leave of this honourable Court to challenge the jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012 via the Appellant’s application filed on 21/09/2020. Now shown to me and marked as Exhibit UU1 is a certified true copy of the Statement of Claim.”

In its written address in support of the motion on notice, the Applicant submitted a sole issue for this Court’ determination, to wit:

“Whether the Applicant is entitled to the prayers sought in the Application”

For the 1st-4th Respondents, the following two issues were submitted for determination, that is:

1. Having regard to the peculiar facts and circumstances of the instant case, whether this Honourable Court can validly exercise its jurisdiction to entertain the issue relating to the competence of the Federal High Court to hear and determine the 1st-4th Respondents’ suit?
2. Having regard to the fact the Appellant’s present appeal is incompetent ab initio, whether this Honourable Court can grant leave to the Appellant to further amend the Appellant’s Amended Notice of Appeal filed on 2/3/2020?

​Looking at the reliefs sought and the affidavit filed in the application however, the real question that requires answer in the application in my view is: – ‘Whether the Applicant is entitled to the prayers sought in the Application?”

Arguing in support of its Motion dated 21/9/2020, it is submitted for the Applicant that this Court has numerously held that to enable the discretion of this Court to be properly exercised in its favour, an Applicant in an application for enlargement of time to appeal or to seek leave to appeal, must adequately explain the cause of the delay in making the application and give cogent reasons why the application was not made within the time prescribed by the Supreme Court Act. The case of Williams v. Mokwe (2005) 14 NWLR (Pt. 945) 249 at 268, was cited.

​Learned counsel for the Applicant invited the attention of this Court to paragraph 14 of the affidavit in support of the motion, and posited that the failure to appeal on the issue of jurisdiction of the Trial Court to entertain Suit No. FHC/L/CS/1383/2012, which culminated in this appeal, as contained in Ground One of Exhibit E (The Proposed Further Amended Notice of Appeal), within the period stipulated in Section 27(2)(a) of the Supreme Court Act, was occasioned by inadvertence of counsel, and this Court has held in a plethora of authorities that the mistake of counsel should not be visited on his client. He called in aid, the case of Iroegbu Okwordu (1990) 6 NWLR (Pt. 159) 649 at 667, amongst others.

It is the argument of learned counsel for the Applicant that the Applicant, via paragraph 14, has satisfied the first condition laid down in the case of Williams v. Mokwe (supra), adding that the Applicant has demonstrated in paragraphs 12, 13 and 16 of the affidavit that the proposed additional ground of appeal has reasonable chances of success before this Court, especially as it relates to the issue of jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/20, which culminated in this appeal. Reliance was placed on the case of Sebastian Adigwe v. FRN (2015) LPELR- 24694 (SC).

Learned counsel for the Applicant opined that by the provisions of Section 233(2) of the CFRN, 1999 as amended, an appeal from the Court of Appeal to the Supreme Court on grounds of law alone does not require the leave of the Court of Appeal or the Supreme Court.

​According to him, the ground which complains about lack of subject matter jurisdiction to entertain an action, is a ground of law, for which no leave is required. He placed reliance on the case of Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 at 492.

It is the Applicant’s position that the Applicant’s Ground One of Exhibit E (the Proposed Further Amended Notice of Appeal) is a substantial issue, which has good chances of success.

This Court is urged to so hold and grant the application.

Contrariwise, it is submitted for the 1st-4th Respondents that as conspicuously shown in paragraphs 12 and 13 of the 1st-4th Respondents’ counter-affidavit, and as borne out of Exhibits LT2 and LT3 attached thereto, the issue relating to the jurisdiction and/or competence of the Federal High Court to entertain the 1st-4th Respondents’ suit was previously raised by the Applicant/Appellant at the Federal High Court and effectively resolved by the trial Court.

Learned Senior Counsel for the 1st-4th Respondents drew the attention of this Court to paragraph 15 of the Applicant’s Amended Statement of Defence at the trial Court, and noted that the issue of jurisdiction was adequately dealt with by the trial Court and cannot therefore qualify as a fresh issue. He alluded to pages 388-390 in Vol. II of the Record, where the trial Court held that issues relating to the sale and allotment of shares of a public company, fall within the purview of the Federal High Court.

It is the further submission of learned Silk that the purported “fresh issue” sought to be raised by the Applicant in this Court as contained in Ground One of Exhibit E, is not a “fresh issue” at all, as the said issue has been raised, considered and pronounced upon by the trial Court. He maintained that having failed to appeal to the Court of Appeal, against the interlocutory decision of the trial Court and having voluntarily submitted to the jurisdiction of the trial Court, the Applicant cannot validly appeal against the decision of the trial Court, to this Court, without appealing first to the Court of Appeal. He relied on Section 240 of the CFRN 1999, as amended adding that the ruling of the trial Court on jurisdiction was never put before the Court of Appeal for consideration and therefore ought not to be entertained by this Court. Reliance was placed, inter alia, on the following cases:

Idagu v. State (2018) LPELR 44343 (SC)

Bello v. FRN (2018) LPELR 44465 (SC)

Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78

Learned senior counsel for the 1st-4th Respondents opined further that the Applicant’s original Notice of Appeal filed on the 9/3/2018, was void ab initio as the said Notice of Appeal contained grounds of mixed law and facts, for which no leave was sought for and obtained. The case Obayuwana v. Adun (2020) 13 NWLR (Pt. 1741) 371, was cited.

​He maintained that save for Ground one of the original Notice of Appeal filed on the 9/3/2018, all the other grounds of appeal relate to the concurrent findings of fact by the trial Court and the Court of Appeal, for which leave was required, as contemplated by Order 2 Rule 32 of the Supreme Court Rules and Section 233(3) of the CFRN 1999 as amended. The consequence of the foregoing according to him, is that since the original Notice of Appeal filed on 9/3/2018 was void ab initio, this Court lacks the jurisdiction to entertain any amendment to the Notice of Appeal, or the appeal. Reliance was placed on a host of authorities, including the locus classicus case of Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341, and the case of Tsokwa Motors (Nig.) Ltd V. UBA PLC (2008) 2 NWLR (Pt. 1071) 347.

This Court is urged in the circumstance, to refuse and dismiss the application to further amend the Amended Notice of Appeal.

In reply, it is submitted for the Applicant that the arguments of learned senior counsel on behalf of the 1st-4th Respondents, on the meaning of “fresh issue”, is flawed.

Relying on the case of Olalomi Ind. Ltd v. NIDB Ltd. (2009) 16 NWLR (Pt. 1167) 266 @ 286, learned counsel for the Applicant posited that a fresh issue is an issue which was not canvassed at the lower Court and pronounced upon by the lower Court. He maintained that going by the definition of “fresh issue” by this Court in Olalomi Ind. Ltd v. N.I.D.B Ltd (supra), the Applicant’s jurisdictional issue relating to the subject matter jurisdiction of the trial Court to entertain Suit No: FHC/L/CS/1383/2012, is a fresh issue because the issue as to the subject matter jurisdiction of the trial Court to entertain Suit No: FHC/L/CS/1383/2012 was not raised at the Court of Appeal.

​On whether the grounds in the Applicant’s original Notice of Appeal filed on 9/3/2018 contained grounds of mixed law and facts, for which no leave was sought for and obtained, learned counsel for the Applicant contended that contrary to the arguments of senior learned counsel for the 1st-4th Respondents, all the grounds in the original Notice of Appeal are grounds of law, for which no leave was required. He relied on the case of Chrome Air Services Ltd & Ors v. Fidelity Bank (2017) LPELR 43470 (SC), and argued that where there exists at least one ground of law in a Notice of Appeal, such a ground of law is capable of sustaining the appeal. He argued further that as borne out of the records before this Court, the Applicant filed an application for the trinity prayers and this Court granted the Order on 11/02/2020. The effect of the Order, according to him, is that any defective ground in the initial Notice of Appeal has been regularized by this Court.

Consequently, this Court is urged to discountenance the submissions proffered on behalf of the 1st-4th Respondents, and grant the Applicant’s application.

​My Lords, from the foregoing submissions of counsel on both sides, it is apparent that the hurdle before us is a determination of whether or not, the Applicant is entitled to a favourable exercise of our discretion, to wit: granting the Applicant leave to further amend its amended Notice of Appeal, by the addition of a new ground one which reads as follows:

GROUND ONE

The lower Court erred in law when the lower Court affirmed the judgment of the Federal High Court that lacked the subject matter jurisdiction to entertain the 1st-4th Respondents’ claim.

PARTICULARS

i. In paragraph 15 of the Amended Statement of Defence dated 14/01/13, the Appellant raised the lack of subject matter jurisdiction of the Federal High Court to entertain the 1st-4th Respondents’ claim.

ii. The Federal High Court is a specialized Court with limited jurisdiction,

iii. The 1st-4th Respondents’ claim of rescission of sale of shares transactions on the allegation of fraudulent misrepresentation, as constituted in their Statement of Claim (SoC), is rooted in contract.

iv. The Court of Appeal found that the Appellant and the 5th Respondents were joint tort feasors liable to the 1st-4th Respondents.

v. Contractual and tortious claims do no fall within Section 251 of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

vi. The absence of subject matter jurisdiction renders the whole proceedings of the Federal High Court and the lower Court a nullity.

It has been argued by learned senior counsel for the 1st-4th Respondents that the complaint of the Applicant is not a fresh issue. According to learned Silk, the issue of the jurisdiction of the trial Court was raised via the Preliminary Objection filed by the 2nd Defendant, now 5th Respondent, and all the parties, including the Applicant herein made extensive arguments thereto, before the trial Court made a pronouncement on the issue of its jurisdiction, as follows:

“It is on record that the learned Counsel for the 1st Defendant referred to paragraph 14 of her Statement of Defence (paragraph 15 of the Amended Statement of Defence) which averred that she shall during or before trial contend that this Court lacks jurisdiction to entertain the Plaintiffs’ suit. He therefore stated, having completely aligned himself with the submissions of the 2nd Defendant (sic)… Upon perusal of the entire reliefs sought by the Plaintiffs as contained in their Statement of Claim in this Suit dated 22nd November, 2012, I hold the respective view that the Plaintiffs’ cause of action borders on allotment of shares of the 2nd Defendant, by way of private placement. This, in my humble opinion is a transaction arising from the operation of CAMA. To that extent, the subject matter of the Plaintiffs’ claims falls within the purview of Section 251(1)(e) of the CFRN 1999… Pursuant to this Constitutional provision, the Federal High Court is vested with exclusive jurisdiction in respect of such issue as sale or allotment of company shares, which in my humble view, is a transaction that arises from the operation of CAMA …”

As can be garnered from the Applicant’s motion paper, I agree with the arguments of learned SAN that the -issue classified as “fresh issue” relates to the jurisdiction of the Federal High Court to entertain the suit filed by the 1st-4th Respondents. The issue as to the jurisdiction/competence of the Federal High Court was raised and effectively resolved by that Court. The settled position of the law is that a “fresh issue” is a new point of law, which was not canvassed or ventilated by any of the parties at the trial Court and decided upon before it is raised at the appellate Court.

In the instant application, the issue of lack of subject matter jurisdiction of the Federal High Court to entertain the 1st-4th Respondents’ claim was raised and determined at the trial Court and cannot therefore qualify as a fresh issue.

The next point made by learned Silk is that based on the general rule, a ground of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. Any ground of appeal that does not relate to the judgment of the Court, is incompetent.

​I am ad idem with learned senior counsel that the well settled proposition of law is that grounds of appeal are not formulated in abstract. For grounds of appeal to be competent, they must be predicated on the ratio of the decision appealed against. In other words, the grounds of appeal must be based on the decision of the lower Court, which should in turn be based on the issues joined by the parties in their pleadings, evidence adduced in support thereof and the submissions of counsel on the law applicable to the facts so established by evidence. See:

Sogunro & Ors v. Yeku & Ors (2017) LPELR 41905 (SC)

Egbe v. Alhaji (1990) 1 NWLR (Pt. 127) 546

Chami v. U.B.A. Plc (2010) 6 NWLR (Pt.1191) 474 @ 502.

I must however point out that where a ground of appeal questions the jurisdiction of a Court, it does not matter whether the issue of jurisdiction constituted the ratio of that decision or not, such a ground of appeal cannot be said to be incompetent by reason that it does not arise from the decision or constitute a challenge to its ratio decidendi. See:

FSB International Bank Nig. Ltd v Imano Nig. Ltd (2000)11 NWLR (Pt.678) 620 at 639,

A.G. Kwara State & Anor v. Lawal & Ors (2017) LPELR- 4234 (SC);

Madubuike v Madubuike (2001)9 NWLR (Pt.719)698 at 707.

That being said, the proposed additional ground of appeal, being a jurisdictional issue, can be raised at any stage of proceedings, including this Court for the first time.

In FHA v Kalejaiye (2010) 19 NWLR (Pt.1226) 149 at 164 para b, this Court, per Rhodes Vivour, JSC said:-

“The issue of jurisdiction can be raised for the first time in any Court and at any stage of the proceedings and in the Supreme Court for the first time. Jurisdiction is a threshold issue and it is so fundamental in that where a Court has no jurisdiction to determine an issue, the entire proceedings and judgment will be an exercise in futility. Once the issue of jurisdiction is raised, the Court is bound to examine whether it is spurious or genuine ground …”

Another point made by learned Silk is to the effect that the Appellant’s original Notice of Appeal filed on the 9/3/2018, was void ab initio and cannot be a valid plank upon which any amendment can be sought for and granted.

With due deference to learned senior counsel, and as rightly submitted by the Applicant’s counsel, it is impermissible to raise the issue of competence of a Notice of Appeal in a counter-affidavit. The proper approach, where the competence of an appeal is being challenged, is to raise a preliminary objection to the hearing of the appeal, based on the alleged incompetent grounds of appeal. In the instant case, the submissions made on behalf of the 1st-4th Respondents ought to be limited to opposing the prayers sought in the Applicant’s application. It should not be extended to attack the competence of the Applicant’s appeal.

In the extant application, it is trite law that any Appellant is at liberty either to file additional grounds of appeal on receipt of the records or even to substitute new grounds for the original grounds filed before the receipt of those records. The aim being that an Appellant should feel quite free to urge, agitate and canvass any point or points which he thinks will help the Court to arrive at a just determination of the appeals See:Unilag & Anor Aigoro (1985) LPELR 3418 SC.

It is of utmost importance however that when applications for leave to file and argue additional grounds of appeal or for leave to argue grounds of law and mixed facts and law or facts alone are being entertained, the Court should scrutinise the grounds and satisfy itself that such grounds of appeal are competent, and that the Applicant has adduced cogent reasons for the favorable exercise of the Court’s discretion. See Peters & Anor v. State (1992) LPELR 2914 SC.

​Looking closely at the relevant averments in the Applicant’s supporting affidavit as reproduced above, (particularly Paragraph 14 thereof), it can be said that the Applicant seemed to have attributed his failure to include a ground of appeal bordering on the lack of jurisdiction of the trial Court to entertain Suit No. FHC/L/CS/1383/2012 in the Appellant’s Notice of Appeal dated 09/03/18 (Exhibit C) and the Appellant’s Amended Notice of Appeal dated 18/02/20 and was filed on 02/03/20 (Exhibit D), to “the inadvertence of counsel”.

It is an established principle of law, that Courts do not normally punish a litigant due to the mistake of his counsel. Mistake or inadvertence of counsel is neither magic nor sacrosanct such that once raised as the cause of a lapse, the Court must accept or waive it in favour of the claimant of such excuse or as reason to condone or overlook such lapse. It however must be proved that it is a genuine mistake. The Courts must be satisfied not only that the allegation of the fault of counsel is true and germane, but also that it is availing, having regard to the circumstances of the particular case.

​In this instant case, the Applicant has not demonstrated to this Court what occasioned the inadvertence on the part of counsel. Courts of law do not embark on conjecture or guess work as same can hardly produce a just and equitable decision. Where an Applicant prays the Court to exercise its discretion in his favour judicially and judiciously, it is his duty to place before the Court sufficient materials upon which the Court will rely in granting his application. This Court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial judgment based on fact guided by the law or the equitable decision. See:

Adigwe v. FRN (2015) LPELR 24694 SC;

General & Aviation Services Ltd v. Thahal (2004) LPELR 1317 SC.

​Thus, the mere making of whimsical statements which do not supply convincing, satisfactory, concrete and cogent reasons in explaining away the delay or tardiness, can hardly be acceptable to this Court. Even if the complaint of mistake or inadvertence of counsel is correct, the averments of the Applicant in the supporting affidavit clearly showed lack of diligence, carelessness and/or indifference on the part of both Counsel and Applicant.

From the averments of the Applicant, I am not convinced that they constitute special circumstances as would justify this Court to exercise its discretion to grant the application to seek leave to file an additional ground of appeal. With regard to the additional ground of appeal contained in the proposed further amended notice of appeal, even if the grounds of appeal might appear to show prima facie good cause, the failure of the Applicant to meet the other condition of establishing special circumstances will render the application incompetent and therefore liable to be refused.

Accordingly, the application filed on 21/09/2020 has no merit and is therefore dismissed.

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SC.644/2018(R)