AFRIBANK NIGERIA PLC & ORS v. NIGERIA DEPOSIT INSURANCE CORPORATION (2015)

AFRIBANK NIGERIA PLC & ORS v. NIGERIA DEPOSIT INSURANCE CORPORATION

(2015)LCN/7846(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of April, 2015

CA/L/668/2012

RATIO

COURT: HEARING DATE; WHETHER THE COURT CAN TREAT A DATE WHEN A CASE IS FIXED FOR MENTION AS A HEARING DATE AND THE EFFECT OF ANY JUDGEMENT CONTAIN IN THIS REGARD

It is settled law that a court cannot treat a date when a case is fixed for mention, as a hearing date and any judgment obtained in this regard amounts to a nullity. See FALADU v. MALAM KWOI [2002] FWLR (Pt. 113) 365 at 373-375; SPARKLING BREWERIES LTD & ANOR v. BANK of CREDIT & COMMERCE INT’L (NIG.) LTD [2003] FWLR (Pt. 172) 1769 at 1775; MENKITI v. MENKITI [2000] FWLR (Pt. 2) 293; NIGERIAN BOTTLING CO. PLC v. EZEIFO [2002] FWLR (Pt. 97) 772 at 783; DR. OBI v. OBI (2004) ALL FWLR (Pt. 224) 2081 at 2088.
In ALHAJI UBA KANO v. BAUCHI MEAT PRODUCTS CO. LTD (1978) 9 & 10 S.C. 51 at 56-57, the Supreme Court, Per KAYODE ESO, JSC held:
“In Olubusola Store v. Standard Bank (Nigeria) Limited (1975) S.C. 51, this Court considered these rules and held:
… Besides this, however is the fact that the order made on the ex-parte application on the 11th day of June, 1973, had fixed the case only for mention on the 9th day of July, 1973 if, as indeed it was the case, the suit was only to be mentioned on that day, the learned trial Judge clearly wrongly treated that date as a date for hearing of the action and erred in law as the entry of judgment on that day was in breach of Rule 13…”
Similarly, this Court, Per OGBUINYA, JCA in BROAD BANK OF NIGERIA LTD v. ZAMOGAS NIGERIA LTD (2011) LPELR-3892(CA) held:
“The law had been settled, by a legion/retinue of cases that a judgment obtained by a party on a date a matter is slated for mention; not for hearing, is enveloped in nullity. See Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; (1975) 9, NSCC 137; Kano v. B.M.P.C. Ltd. (1978) 9-10 SC 51; N.N.N.P. Ltd. v. Oteh (supra). In the case of Mbadinuju v. Ezuku (1994) 10 SCNJ 109 at 122, the appellants sued respondent in the High Court for a declaration that they were the owners of a parcel of land in the possession of the respondents; On 18/07/1971, pleadings were ordered. In January, 1978, the appellants filed a motion for extension of time to file their statement of claim while the respondent filed an application for judgment for the appellants’ default to file their statement of claim. Both motions were filed for hearing on 01/02/1978, but the court did not sit. On 13/02/1978, the case came up, but only the counsel for the respondent was present. There was no record of notification of the parties on the fixture of 13/02/1978.
Nonetheless, the Learned trial Judge struck out both motions and the substantive suit. Later on, on 21/02/1978, the case up again and the both motions were granted and withdrawn respectively. Thereafter, pleadings were duly filed and exchanged. After hearing, Judgment was awarded to the appellants. The court of appeal allowed the respondent’s appeal to it. The appellants’ appeal to the Supreme Court was allowed. Ogundare, JSC, declared: “In the case of the main suit, it could not have been listed for 13/2/78 for hearing since pleadings have not been filed. At best, it could only have been for mention. Even then, there is nothing to indicate that the parties were aware that the case was to come up that day. It had been held by this court that it is wrong for a Judge to treat a date fixed for mention of a case as one for hearing, any judgment entered contrary to this amounts to a nullity”. See, also Obunde Ogbuinya, Understanding The Concept of Jurisdiction in The Nigerian Legal System, Snaap Press Ltd., 2008, 142-144 for detailed analyses.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

CONSTITUTIONAL LAW: FAIR HEARING; WHAT FAIR HEARING ENTAILS

Fair hearing in this regard has been interpreted to imply fair trial that every reasonable and fair minded observer who watches proceedings should be able to come to the conclusion that the court has been fair to all the parties concerned. See UNIBIZ (NIG.) LTD v. COMMERCIAL BANK CREDIT LYONNAIS LTD [2003] 6 NWLR (Pt. 816) 402; KOTOYE v. CBN [1989] 1 NWLR (Pt. 98) 419. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. AFRIBANK NIGERIA PLC
2. IGBRUDE MOSES OKE
3. RASAQ OLALEKAN MUMINI
4. AKINSANYA SOLOMON SUNDAY
5. SULEIMAN DAUDA BABATUNDE
6. IGBA SANMI OLATOMIDE
(For themselves and in the name and on behalf of Afribank Nigeria Plc) – Appellant(s)

AND

NIGERIA DEPOSIT INSURANCE CORPORATION – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Lagos Judicial Division; Per Archibong J. dated the 2nd day of July, 2012 striking out the Appellants’ Notice of Preliminary Objection and granted the Order for the Winding-Up of the 1st Appellant.

The background facts of the case leading to this appeal seem quite simple and straightforward. On 22/12/2011, the Respondent pursuant to its statutory mandate under Section 40(2) of the Nigerian Deposit Insurance Corporation Act, 2006 presented a Petition at the lower Court against the 1st Appellant. Consequent upon advertisement of the Petition, the 2nd to 6th Appellants filed a Notice of Intention to appear in the hearing of the Petition. When the Petition came up for hearing on 07/02/2012, the lower court adjourned proceeding to 02/04/2012, on the ground that there are pending suits that may be prejudiced. On the adjourned date of 02/04/2012, proceedings were further adjourned to 02/07/2012 for mention. However, on 02/07/2012, the Appellants and their Counsel were not present in court and the lower court struck out the Appellants’ Notice of Preliminary Objection and granted the Order for the Winding-Up of the 1st Appellant as prayed by the Respondent. The Appellants being dissatisfied with the decision of the learned trial judge filed a Notice of Appeal dated the 11/07/2012 on five grounds.

In line with the rules of the court, the Appellant brief settled by I. O. Aniakor, Esq. of Onyebuchi Aniakor & Co., is dated and filed on 13/9/2012, as well as an Amended Reply Brief dated 12/11/2014 and filed on 13/11/2014 but deemed properly filed on 13/11/2014. The Respondent’s brief is dated 29/10/2014 and filed on the same date but deemed properly filed on 18/11/2014. Same was settled by Dr. K. U. K. Ekwueme, Khadija Yusuf and Chukwuemeka Osuji of Olaniwun Ajayi LP.

Appellants in their brief formulated two (2) issues for determination as follows:

2. Whether the Petition filed in this suit and the entire suit itself are not wholly incompetent and/or constitute grievous abuse of process, and ought thereby be struck out and/or dismissed in their entirety? (Ground 5)”

The Respondent on the other hand while adopting the above issues as formulated by the Appellants filed a preliminary objection challenging the competence of the appeal on the following grounds:

1. “The Notice of Appeal is incompetent, as it is contains the names of non-parties at the lower court; and

2. The Appellants failed to obtain leave to institute this appeal contrary to Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).”

The Respondent in its Brief argued the preliminary objection, consequent upon which the Appellant replied to the argument in the Appellant’s Amended Reply brief. The preliminary objection raised will be considered forthwith.

Arguing its preliminary objection, the Respondent contends that a Notice of Appeal is the originating process in appellate proceedings before this court and its competence or otherwise goes to the jurisdiction of this court. Counsel further contended that an incompetent notice of appeal robs this court of its jurisdiction to hear an appeal. Citing VERALAM HOLDINGS LIMITED v. GALBA LIMITED & ANOR (2014) LPELR-22671(CA) 8-9, D-C and OLORIODE v. OYEBI [1984] NSCC 286 at 297, paras 25 to 30, Respondent’s Counsel submits that a notice of appeal is incompetent where the parties in the suit leading to the appeal were unilaterally altered without the leave of court. Counsel further submitted that from the Petition filed at the lower court, it is evident that the parties at the lower court were only the Respondent herein (Nigerian Deposit Insurance Corporation, as Petitioner) and the 1st Appellant (Afribank Plc, as Respondent). Counsel referred to the winding up order made by the lower court contained in page 582 of the Records, to submit that it is clear that the 2nd to 6th Appellants were not parties to the Petition which gave rise to this appeal and were allegedly joined as Appellant herein without the leave of this court first sought and obtained. Counsel referred to Order 6 Rule 2 (1) of the Court of Appeal Rules; ADEGOKE MOTORS LTD v. ADESANYA [1998] 3 NWLR (Pt. 109) 250 at 266, G-H; NGIGE v. OBI [2006] 14 NWLR (Pt. 999) 1 at 106-108, D-A on the position of the law that all appeals shall be by way of rehearing and since an appeal is regarded as a continuation of the original suit rather than the inception of a new action, the parties to an appeal should be confined to the parties in the court of first instance. Counsel then submitted that the inclusion of persons who were not parties to the Petition at the lower court in the Notice of Appeal as Appellants without leave of this court renders the Notice of Appeal incompetent.

It is also the Respondent counsel’s position that the appeal is incompetent because the 2nd to 6th Appellants lodged same in defiance of the express provision of Section 23 (a) of the 1999 Constitution (as amended). Counsel argued that failure to satisfy the pre-condition of leave under that Section is fatal to an appeal and that the proper order to make in the circumstances is an order striking out the appeal. Counsel cited IFEANYI OKONKWO & MODE NIG. LTD v. UBA PLC [2011] 6-7 S.C. (Pt. 1) 189 at 203, paras 15-20. Arguing further, Counsel submits that the 2nd-6th Appellants failed to make any application for joinder of parties pursuant to Order 9 Rule 15 of the Federal High Court Civil Procedure Rules 2009 and there was no evidence at all in the Records that the 2nd-6th Appellants sought and obtained leave of court prior to instituting this appeal. Counsel then urged this court to strike out this appeal as being incompetent for non-fulfillment of the condition precedent to its filing, or in the alternative, strike out the names of the 2nd to 6th Appellants as parties to this appeal.

In reply, the Appellants submitted that in a suit commenced by way of a Winding-Up Petition, such as in the instant case, the same contemplates and/or envisages that, subsequent to the filing of the Petition and the advertisement of the same with the prior Order of leave of Court to that effect, as provided under Rule 19 of the Companies Winding-Up Rules, 2001, any person, other than the named Respondent in the Petition, who so intends, may appear in the manner provided under the Winding-Up Rules and shall become entitled to be heard on the Petition. Counsel referred to Rule 19 (1), (2) (c) and Rule 20 of the Companies Winding-Up Rules 2001. Counsel further argued that even under the ordinary Civil Procedure Rules of the lower court, where the court is approached by an Applicant with an application for joinder and such an application is refused, the Applicant is not precluded from exercising his right of appeal against the said decision merely on the ground that he was yet to be joined as party to the suit. On the issue of Section 243 (a) of the 1999 Constitution (as amended), Appellants’ Counsel argued that the requirement of leave to appeal in the case of civil proceedings is only where such an Appeal is at the instance of any person other than a party to the said proceedings before the lower court. Counsel submitted that none of the case law authorities offered on behalf of the Respondent is applicable in the particular circumstances of this case and that the Respondent’s objections should be discountenanced and dismissed.

After considering the submission of counsel on both sides, it is clear that the bone of contention regarding this preliminary objection relates to the narrow issue of whether in relation to the circumstances of the instant appeal, it is mandatory for the Appellants to have first sought and obtained leave of this court before filing this appeal?.

It is the position of the Respondent that the Appellants without the leave of court first sought and obtained unilaterally altered the parties to this suit with the inclusion of the 2nd to 6th Appellants as parties to this appeal. As Respondent’s Counsel rightly submitted, it is trite that a Notice of Appeal is incompetent where the parties in the suit leading to the appeal were unilaterally altered without leave of court first sought and obtained. In VERALAM HOLDINGS LIMITED v. GALBA LIMITED & ANOR (2014) LPELR-22671 (CA) 8-9, D-C, this Court, Per EKO, JCA held:
By Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011 “all appeals shall be by way of rehearing”. As stated in ADEGOKE MOTORS LTD v. ADESANYA [1998] 3 NWLR (Pt. 109) 250 at page 266, which principle of law was restated in NGIGE v. OBI [2006] 14 NWLR (Pt. 999) 1 at page 225: because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action; parties are normally confined to the case, as pleaded in the court of first instance… The unilateral alteration of the parties in the suit, as pleaded at the court below, by the appellant as reflected in the notice of appeal renders the notice of appeal incompetent. With these parties improperly altered, on the notice of appeal, the said notice of appeal is liable to be struck out and it is hereby struck out. When there are improper parties on an originating process, the proper order to make is an order striking out the said process, in this case, the notice of appeal. See OLORIODE v. OYEBI (1984) 1 SCNLR 390. This is what Order 6 Rule 6 of the Court of Appeal Rules, 2011 is all about.

In the instant case, can it be said that the Appellants have unilaterally altered the parties so as to render the notice of appeal incompetent and liable to be struck out? This will evidently lead to the consideration of the nature of the proceedings before the lower court, as well as the processes filed therein leading to this appeal. It is not in dispute that the suit before the lower court was commenced by way of petition as the Respondent had sought to wind up the 1st Appellant. Therefore, I need not restate that the rules governing proceedings in an action for the winding up of a company incorporated under the Companies and Allied Matters Act Cap C20, Laws of the Federation of Nigeria, 2004, is the Companies Winding-Up Rules of 2001, which is a subsidiary legislation made pursuant to the provision of the Act. The relevant provision of the Rules in relation to the instant case is as follows:
Rule 19 states:
(1) “No petition shall be advertised until the judge hearing the petition or a judge before whom the petition is first mentioned in open Court so orders.
(2) The order for advertisement of a petition shall be as follows:-
a. The petition shall be advertised fifteen clear days before the hearing;
b. The petition shall be advertised once or as many times as the Court may direct, in the Gazette and in one national daily newspaper and one other newspaper circulating in the state where the registered office, or principal or last known principal place of business, as the case may be, of such company is or was situate, or in such other newspaper as shall be directed by the Court.
c. The advertisement shall state the day on which the petition was presented, and the name and address of the petitioner, and of his solicitor, and shall contain a note at the foot thereof stating that any person who intends to appear at the hearing of the petition, either to oppose or support, must send notice of his intention to the petitioner, or to his solicitor, within the time and manner prescribed by this rule and any advertisement of a petition for the winding-up of a company by the Court which does not contain such a note shall be deemed irregular.
(3) A petition not advertised within the time prescribed or in the manner prescribed shall be struck out, unless, for sufficient reason given, the Court otherwise orders.
(4) Advertisement of the petition shall be in Form 9 or 10 in the Appendix with such variations as circumstances may require”
(Underline mine)
Rule 23 states:
(1) “Every person who intends to appear on the hearing of a petition shall be given to the petitioner, notice of his intention in accordance with this rule.
(2) The notice shall contain the address of the person intending to appear, shall be signed by him (or by his solicitor) and shall otherwise be in Form 12 with such variations as circumstances may require.
(3) The notice shall be served or sent by post to petitioner or his solicitor, at the address stated in the advertisement of the petition.
(4) The notice shall be served (or if sent by post shall be posted in such time as in ordinary course of past to reach the address) not later than five days before the hearing.
(5) A person who has failed to comply with this rule shall not, without the special leave of the Court, be allowed to appear in the hearing of the petition. (Underline mine)
A community reading of the Rule 19 (2) (c) and 23 (1) & (5) reproduced above would reveal what the law requires of a Respondent who intends to appear on the hearing of a petition. Apparently, such a Respondent is only required to ‘send notice of his intention to the petitioner’ and nothing more. In this instant case, the Respondent challenging the competence of this appeal has not raised any objection as to the fact that the 2nd to 6th Appellant failed to comply with the above provisions of the Rules. What is evident from the records of appeal, particularly at pages 392 to 393, is that the 2nd to 6th Appellants as persons interested in the hearing of the petition served on the Petitioner a ‘notice of intention to appear on the petition to wind up Afribank Nigeria Plc. dated 18/01/2012 and filed on 19/01/2012. What more does the Respondent require the Appellants to do apart from what they have done?
Meanwhile, a cursory reading of Rule 24 of the Companies Winding-Up Rules would reveal that it is the obligation of the Petitioner to prepare the list of the names and addresses of persons who appear on the petition. Nothing on records shows that this was done by the Respondent. Therefore, due to the special nature of winding-up proceedings, once ‘any person interested’ in appearing in the hearing of the petition has served the required notice as provided under the Rules, such a person(s) is deemed to be a party to the winding-up proceedings. To this extent, the contention of the Respondent is that, the Appellants were not parties to the proceedings leading to this appeal and that they had unilaterally altered the parties is clearly misconceived. The Appellants have not in any way or manner altered the parties unilaterally, hence the leave of this court is not required for them to bring this appeal.

No doubt, the above finding that the 2nd to 6th Appellants were parties to the proceedings at the lower court renders inapplicable the provisions of Section 243 (a) of the 1999 Constitution (as amended) since the argument of the Respondent in this regard was predicated on its submission that the 2nd to 6th Appellants were not parties to the Petition at the lower court. Thus the cases and other authorities relied upon by the Respondent on this ground does not have any bearing on the instant appeal.

Therefore the preliminary objection of the Respondent fails and is hereby struck out.

Proceeding to the main appeal, as earlier noted, the Appellants formulated two issues which were also adopted by the Respondent. For the purpose of emphasis, the issues are as follows:

1. “Whether it is open to the lower court to proceed, on a date in which this suit was expressly and specifically fixed for mention by the Court, to strike out the Appellant herein’s Notice of Preliminary Objection to the competency of the suit and/or to entertain the Petition comprised in this suit without any prior notice to the contrary and in the absence of an Order setting aside its earlier Ruling, to wit: “That there are suits that may be prejudiced”? (Ground 1, 2 and 3)
2. Whether the petition filed in this suit and the entire suit itself are not wholly incompetent and/or constitute grievous abuse of process, and ought thereby be struck out and/or dismissed in their entirety? (Ground 5)”

Arguing this issue, Appellants submits that on 7/02/2012, when the suit came up before the lower court, the court declined to take any further proceedings thereon or to hear any of the parties on the matter because “there are pending suits that may be prejudiced” and adjourned the suit to 2/04/2012 for mention.

Counsel further submits that on the adjourned date, the same scenario was repeated and the matter was further adjourned to 02/07/2012 for mention. It is also the submission of Counsel that on the said 02/07/2012, however, the lower court rather than proceed with the suit as one scheduled only for mention and without any prior notice to the contrary or an order setting aside its earlier ruling of 7/02/2012, instead proceeded, suo motu, “to strike out the Appellants’ said Notice of Preliminary Objection” and grant the Petitioner’s prayer thus: “Order for Winding-Up as prayed”.

Counsel contended that, on settled law, the only business of the lower court on the said 2/07/2012 is for the mention of the suit and not to proceed with any hearing thereon without prior notice to the contrary. Appellants Counsel cited NWANEGBO v. OLUWOLE (2001) 37 WRN 101 at 109, 112-113, Per GALADIMA, JCA (as he then was) and ADEREMI, JCA (as he then was), respectively to reiterate his earlier argument. Learned Counsel submitted that given the lower court’s ruling of 7/02/2012 that “there are pending suits that may be prejudiced”, it follows that, unless and until the said ruling is set aside by a Court of Competent jurisdiction, the same remains binding and subsisting not only between the parties but equally on the court itself.

Counsel also submitted that in making the Ruling of 7/02/2012, the lower court was seized of the Appellant’s said Notice of Preliminary Objection, the Grounds thereof, the Affidavit in Support, Exhibits thereto and Written Address in Support wherein the facts of the pendency of other suits was brought to the attention of the Court. Counsel further submitted that the lower court is lacking in the jurisdiction and/or power to set aside, as it were, the self-same Ruling in the absence of any grounds nullifying the same or any other vitiating circumstances. Arguing further, Appellants’ Counsel submitted that it is neither the law nor the practice that it is mandatory for a party and/or his Counsel to be physically present in Court on a date for mention in a Suit and/or that failure to attend the Court is punishable and that to seek to punish a party, therefore, as the lower court appears to do in the proceedings of 7/02/2012 is wholly unallowable under our laws.

Relying on OKAFOR v. A-G, ANAMBRA STATE [1991] 6 NWLR (Pt. 200) 659, Counsel argued that since a judgment or order of court which is given without compliance with the rules of court or is in breach of the law has breached a fundamental right such as the right to fair hearing, which judgment or order Counsel contended is a nullity and ought to be set aside by the Court that gave it or by an Appellate Court. Learned Counsel urged this Court to resolve this issue in favour of the Appellants and allow the appeal.

Responding to this issue, Respondent’s Counsel contended that, when the matter came up on 02/07/2012 before the lower court, the 1st Appellant elected not to appear and that its Counsel who was aware of the date also refused to appear. Counsel contended that no reason albeit flimsy or cogent was adduced for their absence in court but that the Appellants had the effrontery to submit that it is not mandatory for them to be physically present in court on a date set aside for mention.

While referring to page 239 of the Records, Learned Counsel argued that it was the “Persons Interested/Applicants for themselves and on behalf of the named Respondent in this Suit” that filed the Notice of Preliminary Objection and not the 1st Appellant, who was the named Respondent in the Suit. Counsel also referred to Paragraph 2 of the Affidavit in Support of the Preliminary Objection deposed to by one Nnamadi Okoroike Williams, which Counsel submits confirmed that the Notice of Preliminary Objection was filed on behalf of Persons Interested who were non-parties to the Petition. Counsel further submitted that it is on record that the Respondent at the lower court (Afribank), did not file any process challenging the Petition and that, what was struck out by the lower court was the Notice of Preliminary Objection filed by the 2nd to 6th Appellants who were not parties before the lower court and who were not joined as parties. Counsel contended that the Appellants’ argument that the lower court ought not to have heard the Petition in the circumstances is misconceived as having struck out the Notice of Preliminary Objection filed by the 2nd to 6th Appellants, there was no application standing in the way of the hearing of the Petition. Counsel submitted that the 1st Appellant was given equal opportunity to be heard by the lower court. Counsel cited N.F. & V.C.B. v. ADEGBOYEGA [2012] 10 NWLR (Pt. 1037) 45 at 60; NEWSWATCH COMM. LTD v. ATTAH [2006] 12 NWLR (…) 144 at 170-174; INEC v. MUSA [2003] 3 NWLR (Pt. 806) 72 at 94, paras A-B, Per TOBI, JSC. Counsel urged this court to discountenance the arguments of the Appellants and uphold the judgment of the lower court granting the Petition.

In Reply, the Appellants Counsel merely restated and wholly adopted its arguments and submissions made in response to the preliminary objection to the competence of the appeal raised by the Respondent as their submissions hereunder. I need not reproduce same again.

Now, the main complaint in this arm of the appeal has to deal with the narrow issue relating to the propriety of the hearing and striking out order made by the lower court on date fixed for mention. To this extent, it will be appropriate to reproduce the relevant portion of the proceedings at the lower court leading to this appeal. These are the proceedings of 07/02/2012; 02/04/2012 and 02/07/2012 contained in pages 542A-543; 570-571 and 572-573 respectively of the record.
The proceedings of 07/02/2012 is as follows:

“Parties absent.
Dr. W. K. Ekwueme for the Petitioner.
Dr. O. G. Amokanye with N. A. Ohionye, Esq.
V. O. Ogbogu, Esq. for Association of Senior Staff of Banks, Insurance and Financial Institutions.
I. O. Aniator, Esq. for the Respondents and some persons interested who Plaintiffs in pending suits before this Court with me is Miss P. Unegbu
COURT: There are pending suits that may be prejudiced
2nd April, 2012 for mention
HON. JUSTICE C. E. ARCHIBONG
JUDGE
7/2/2012″ (Underline mine)

It is apparent that the matter was adjourned to 02/04/2012 for mention and nothing more.

On 02/04/2012, the same scenario played out with the lower court further adjourning proceedings. In the words of the learned trial Judge:

“COURT: We shall adjourn for mention 2nd July, 2012” (Underline mine)

Meanwhile, on the adjourned date of 02/07/2012, the following transpired at the lower court.

“NDIC represented by Ayodeji Arowolo, Esq. for the Petitioner.
Miss V. O. Ogbogu for the Persons Interested.
COURT: Notice of Preliminary Objection Struck Out.
OGBOGU: We have two (2) applications. 1st is dated 10th January, 2012. Notice of Intention to appear as an Interested Party. 2nd is a motion dated 21st of March, 2011.
It is for enlargement of the time within which to file Reply on Points of Law to the Petitioner’s Written Address.
AROWOLO: We filed a Reply to the Motion of Intention to appear opposing same in the 7th of February.
OGBOGU: Our application is that of a registered Bank. Afribank did not die. It failed to meet up with the requirements of NDIC, its assets and liabilities were transferred to Mainstreet Bank. The Winding-Up Procedure is wrong.
AROWOLO: The provision of Section 40 of the NDIC is very crystal and this Petition is predicated on the provisions of that section.
COURT: The Notice of 10th January, 2012 is dismissed. Move your Petition.
AROWOLO: The Petition is dated 22nd December, 2011 and brought pursuant to Section 40 of the NDIC Act 2006. In sum the Petition is to wind Afribank Nigeria Plc previously called Afribank Nigeria Limited.
In support of the Petition I have attached three (3) Annexures FAB1, FAB2 and FAB3 including the Gazetted revocation of the Bank’s banking licence.
We urge your Lordship to Wind up Afribank Nigeria Plc.

RULING
Order for Winding Up as prayed

HON. JUSTICE C. E. ARCHIBONG
JUDGE
2/7/12″

Evidently, the lower court seems to have taken a u-turn away from the planned schedule of the court for 02/07/2012 by not only striking out the Appellant’s notice of preliminary objection but also granting the prayer of the Petitioner. This is clearly untenable as the only business of the court for that day is the “mention” of the matter upon which the lower court may then fix a date for the hearing of the matter, if it so desires. It is settled law that a court cannot treat a date when a case is fixed for mention, as a hearing date and any judgment obtained in this regard amounts to a nullity. See FALADU v. MALAM KWOI [2002] FWLR (Pt. 113) 365 at 373-375; SPARKLING BREWERIES LTD & ANOR v. BANK of CREDIT & COMMERCE INT’L (NIG.) LTD [2003] FWLR (Pt. 172) 1769 at 1775; MENKITI v. MENKITI [2000] FWLR (Pt. 2) 293; NIGERIAN BOTTLING CO. PLC v. EZEIFO [2002] FWLR (Pt. 97) 772 at 783; DR. OBI v. OBI (2004) ALL FWLR (Pt. 224) 2081 at 2088.
In ALHAJI UBA KANO v. BAUCHI MEAT PRODUCTS CO. LTD (1978) 9 & 10 S.C. 51 at 56-57, the Supreme Court, Per KAYODE ESO, JSC held:
“In Olubusola Store v. Standard Bank (Nigeria) Limited (1975) S.C. 51, this Court considered these rules and held:
… Besides this, however is the fact that the order made on the ex-parte application on the 11th day of June, 1973, had fixed the case only for mention on the 9th day of July, 1973 if, as indeed it was the case, the suit was only to be mentioned on that day, the learned trial Judge clearly wrongly treated that date as a date for hearing of the action and erred in law as the entry of judgment on that day was in breach of Rule 13…”
Similarly, this Court, Per OGBUINYA, JCA in BROAD BANK OF NIGERIA LTD v. ZAMOGAS NIGERIA LTD (2011) LPELR-3892(CA) held:
“The law had been settled, by a legion/retinue of cases that a judgment obtained by a party on a date a matter is slated for mention; not for hearing, is enveloped in nullity. See Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; (1975) 9, NSCC 137; Kano v. B.M.P.C. Ltd. (1978) 9-10 SC 51; N.N.N.P. Ltd. v. Oteh (supra). In the case of Mbadinuju v. Ezuku (1994) 10 SCNJ 109 at 122, the appellants sued respondent in the High Court for a declaration that they were the owners of a parcel of land in the possession of the respondents; On 18/07/1971, pleadings were ordered. In January, 1978, the appellants filed a motion for extension of time to file their statement of claim while the respondent filed an application for judgment for the appellants’ default to file their statement of claim. Both motions were filed for hearing on 01/02/1978, but the court did not sit. On 13/02/1978, the case came up, but only the counsel for the respondent was present. There was no record of notification of the parties on the fixture of 13/02/1978.
Nonetheless, the Learned trial Judge struck out both motions and the substantive suit. Later on, on 21/02/1978, the case up again and the both motions were granted and withdrawn respectively. Thereafter, pleadings were duly filed and exchanged. After hearing, Judgment was awarded to the appellants. The court of appeal allowed the respondent’s appeal to it. The appellants’ appeal to the Supreme Court was allowed. Ogundare, JSC, declared: “In the case of the main suit, it could not have been listed for 13/2/78 for hearing since pleadings have not been filed. At best, it could only have been for mention. Even then, there is nothing to indicate that the parties were aware that the case was to come up that day. It had been held by this court that it is wrong for a Judge to treat a date fixed for mention of a case as one for hearing, any judgment entered contrary to this amounts to a nullity”. See, also Obunde Ogbuinya, Understanding The Concept of Jurisdiction in The Nigerian Legal System, Snaap Press Ltd., 2008, 142-144 for detailed analyses.”
From the record of proceedings reproduced earlier in the course of this judgment, it is apparent from the proceedings of 02/04/2012 that the matter would come up for ‘mention’ and nothing more on the adjourned date of 02/07/2012. Clearly, the trial court ought not to have proceeded to hear the matter unless and until the matter has been slated for “hearing” and/or hearing notice is issued in that regard.

In addition, the learned trial judge apparently neglected to acknowledge and/or refer to the “notice of intention to appear” in the hearing of the Petition filed by the 2nd to 6th Appellant as required of them by the Companies Winding-Up Rules and also ignored the motion of 21st March, 2011 for enlargement of time to file reply on points of law to the Petitioner’s Written Address.

The lower court in the proceedings that led to the grant of the Order for Winding-Up of the 1st Appellant failed to outline whether or not there were any persons interested in appearing in the Petition and whether their interests as such was to support or oppose the petition and on what ground was their oppositions or otherwise based. Nothing of such was done by the lower court.
The approach adopted by the lower court led to a miscarriage of justice and ipso facto a denial of the Appellants’ right to fair hearing. The lower court ought to have afforded the Appellant’s counsel a hearing on the processes filed, before making the order striking out their preliminary objection. See GENERAL ELECTRIC COMPANY v. AYOADE & ORS (2010) LPELR-8097(SC); AFRO-CONTINENTAL LTD v. CO-OP. ASS. OF PRO INC. [2003] 5 NWLR (Pt. 813) 303.

Meanwhile, the Respondent’s Counsel made strenuous effort in arguing that, the approach the lower court adopted was proper since the Court merely struck out the Notice of Preliminary Objection filed on behalf of the 2nd to 6th Appellants who were not parties to the Petition and that the 1st Appellant did not file any process in opposition to the Petition. As earlier held while determining the preliminary objection, the 2nd to 6th Appellants are necessary parties to the Petition and a careful perusal of the Notice of Preliminary Objection would reveal that the parties were addressed thus: Nigeria Deposit Insurance Corporation as Petitioner/Respondent; Afribank Nigeria Plc as Respondent/Applicant, while the 2nd to 6th Appellants were addressed as Persons Interested/Applicants. Even from the Affidavit in support of the notice of Preliminary Objection at Page 243 of the records, that the Respondent referred to in order to buttress its argument in this regard reveals in Paragraph 1 thereof, that the deponent, Nnamadi Okoroike Williams, a Litigation Executive in the Law Offices of Onyebuchi Aniakor & Co,deposed to the fact that he had the consent of both the Law Offices and the “Applicants” to depose to the Affidavit. What more, it was evident that the 1st Appellant as Respondent and the 2nd to 6th Appellant as “Persons Interested” at the lower court were, have been and is still being represented by the same Counsel/Law Offices.

Evidently, winding-up proceedings are proceedings of a special and peculiar nature that results in the termination of life of a corporate body – as the 1st Appellant in the instant case. To this extent, the Companies Winding-Up Rules has provided for the procedures to be followed for the winding up of a company incorporated under the Companies and Allied Matters Act: it is of upmost necessity that Courts should abide by the Rules and also exercise restraint in proceedings for the winding-up of a company, hence the termination of its life.

Therefore, on the basis of the decision of the Apex Court and this court, earlier cited and having held that the matter was adjourned for mention on 02/07/2012, the learned trial judge was clearly in error to have struck out the Appellants’ preliminary objection and granted the order for winding up on that day, hence a nullity.

Meanwhile, before I conclude the resolution of this issue, I must not fail to comment on some submissions made by Appellants’ Counsel in support of its argument on this issue, particularly as it relates to attendance of parties and counsel in proceedings before the court. Appellant’s Counsel had submitted in paragraph 4.1.11 at page 12 of the Appellants’ Brief thus:

“… it is neither the law nor practice that it is mandatory for a party to be physically present in court on a date set aside for mention in a suit and/or that failure to so attend court is punishable.”

Perhaps, as Respondent’s Counsel rightly responded, the above submission is haughty and borne out of lack of respect to the lower court specifically and courts generally. Appellants’ Counsel seems to be ignorant of the duty that rests on him as an officer of the court as well as his duty to his client. As an officer of the court, it is incumbent on Counsel not to do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice. See Rule 30 of the Rules of Professional Conduct for Legal Practitioners, 2007.
By virtue of Rule 14 thereof, it is the duty of a lawyer employed in respect of a Court case to be personally present or be properly represented throughout the proceedings in court. Clearly, the Appellants’ Counsel’s submission in this regard is untenable and Counsel is admonished to ensure attendance in court whenever the business of the court requires him to so do be it when a matter is slated for mention, hearing or any other business. Notwithstanding the foregoing, this issue is resolved in favour of the Appellants.

Having resolved issue one in favour of the Appellants, it will be superfluous and overreaching to go ahead and determine the second issue in this appeal, as I have discovered that this issue bothers on the grounds that have been raised by the Appellants in their Notice of Preliminary Objection in opposition to the petition for the winding-up of the 1st Appellant at the lower court.

In the light of the above, I therefore allow this appeal, the ruling and winding-up order of the 1st Appellant made by the Federal High Court Lagos Judicial Division, Per C. E. Archibong J. dated the 2nd of July, 2012 is hereby set aside. I hereby order that the matter be remitted back to the Lower Court, to the Chief Judge of the Federal High Court for reassignment to another judge for hearing and determination of the Petition. I award the sum of N50,000.00 as cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The comprehensive judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the honour of reading in print and with which I agree traversed the salient issues raised in the appeal.

However, for the sake of emphasis, I wish to add that except where the parties agree, which was not the case here, a matter set down for mention should not be heard on the date fixed for mention vide the fairly recent Supreme Court case of Akinrimisi v. Maersk Nigeria Limited and Anor. (2013) 10 NWLR (Pt. 1361) 73 at 85 following the case of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. So, having adjourned the case for mention on 2-7-12, the court below erred in hearing the case to conclusion on 2-7-12, culminating in its decision granting the relief of the Respondent winding up the 1st appellant bank when the court below had, also, earlier stated on 7-2-12 that there were pending suits that may be prejudiced if the winding up petition was heard.

Further, the court below erred in suo motu striking out the preliminary objection to the winding up petition on 2-7-12 vide the Apex Court case of General Electric Company v. Akande and Ors. (2012) 16 NWLR (Pt. 1327) 593 at 609-610 per the concurring judgment of Fabiyi, J.S.C., thus –
“In the same manner, the lower court struck out the appellant’s motion on notice dated 25th September, 2008 without hearing same. Such a step was not proper. A court of law is bound to hear any application before it. It had no jurisdiction to determine the application, which as extant in the records, it refused to hear same. See: Adeyemi v. Ike Oluwa and Sons Ltd. (1993) 8 NWLR (Pt. 309) 27 at 51-52; Chief Virgilus Ani v. Chief Luke Mana Nna (1996) 4 NWLR (Pt. 440) 101 at 120.
The court below lacked the competence to determine the application when it did not allow the applicant’s counsel to argue same before it. See: U.B.N. Plc v. C.F.A.O. (Nig.) Ltd. (1997) 11 NWLR (Pt. 527) 118 and Urhobo v. Oteri (1999) 2 NWLR (Pt. 589) 147”.

I would resolve the issue for the appellants.

I too would allow the appeal and subscribe to the consequential order(s) contained in the lucid lead judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. O. OBASEKI-ADEJUMO, JCA. I agree with his reasoning and conclusions. The authorities are indeed numerous that a judgment obtained by a party on a date a matter is adjourned for mention and not for hearing is a nullity. See Olubusola Stores v. Standard Bank of Nigeria Ltd (1975) 4 SC 51; Mbadinuju v. Ezuku (1994) 10 SCNJ 109 @ 122. Further, the learned trial judge by striking out the preliminary objection; hearing and granting the order of winding up on the day the suit was fixed for mention without giving the Appellants the opportunity to be heard on any of the issues denied them of fair hearing. The decision cannot be allowed to stand.

I agree that the appeal has merit and should be allowed. I also allow the appeal and set aside the ruling and order of winding-up of the 1st Appellant by Archibong J. of the Federal High Court, Lagos Division dated 02/07/12. I abide by the consequential orders including order as to costs in the lead judgment.

Appearances

Pamela Amali (Mrs.) For Appellant

AND

Dr. K.U.K. Ekweme with Chukwuemeka Osuji,
Femi Gbede, Esq. and Joseph Onele For Respondent