PROGRESS BANK OF NIGERIA PLC. V. O.K. CONTACT POINT HOLDINGS LIMITED
(2019)LCN/12660(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of February, 2007
CA/PH/47M/2005
RATIO
COMPANY LAW: THE ACT OF WINDING UP A COMPANY
“Section 417 of Companies and Allied Matters Act (CAMA) has been profusely applied by this court and the Supreme Court. It is stated by this court in Co-operative & Commerce Bank (Nig.) Ltd v. Onwuchekwa (supra) that the fact of winding up of a company or the appointment of a liquidator i.e. the NDIC in this instant case does not by itself result in the death of a corporate body as the applicant in the instant appeal matter. It is further, declared by this court that quite contrary, section 417 of the Companies and Allied Matters Act (CAMA) has clearly provided action or proceedings against a wound up company and or for whom a liquidator is appointed is maintainable with the leave of the court. This same court has maintained that, a company under a winding-up proceeding, is not yet dead. It is still alive, but perhaps sick – see Co-operative and Commerce Bank (Nig.) Plc v. Mbakwe (supra).” PER ISTIFANUS THOMAS, J.C.A.
COMPANY LAW: WHETHER REVOCATION OF LICENCE LEADS TO THE DEATH OF THE COMPANY
“The revocation of the licence of the Company/Bank and order of court winding up same does not indicate its death. The appointment of a Liquidator is for the purpose of ensuring the smooth burial of the company. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65.” BODE RHODES-VIVOUR J.C.A.
COURT AND PROCEDURE: DISCRETIONARY POWER OF THE COURT
“It’s trite that by the above rules, this court has an unfetted discretionary power to make an order for departure from the rules thereof in appropriate cases. Undoubtedly, the discretionary power in question is accorded the court with a view to facilitating the expeditious hearing and determination of an appeal before it. See Minister of Works and Housing v. Tomas (Nig.) Ltd. & 26 Ors. (2001) 10 NWLR (Pt. 721) page 295 at 297 per Musdapher, JCA (as he then was).” PER IBRAHIM MOHAMMED MUSA SAULAWA J.C.A
JUSTICE
ISTIFANUS THOMASJustice of The Court of Appeal of Nigeria
BODE RHODES-VIVOURJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
Between
PROGRESS BANK OF NIGERIA PLC.Appellant(s)
AND
O.K. CONTACT POINT HOLDINGS LIMITEDRespondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Lead Ruling):
The defendant/appellant/applicant, now to be simply referred to as “applicant” in this ruling, filed on 14th February, 2005 a motion for departure from the rules in which it prayed for an order of the Court of Appeal to allow it to compile the records of appeal and also for an order that the annexed exhibit ‘A’, be used as the records of appeal, and that same be deemed as properly filed and served and for such further orders as the honourable court may deem fit to make in the circumstances. In support of the motion, Uche Ibezim, Esq. swore to a 19-paragraph affidavit. Paragraphs 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16 are relevant and read thus:
“6. That the plaintiff filed a motion on notice dated 31st day of March 2003 praying the honourable court to substitute, the 1st defendant with Nigerian Deposit Insurance Corporation (NDIC).
7. That the learned trial Judge delivered His ruling on the 6th day of December 2004 and found in favour of the plaintiff.
8. That being dissatisfied with the said ruling the appellant filed a notice of appeal against the said ruling on 9/12/2004.
9. That since filing the said notice of appeal the appellant though its counsel has been going to the appeal section of the High Court for compilation of the records of appeal but has met with one problem or the other.
11. That time is of the essence in this appeal so that the appellant’s position under the law will not be prejudiced by the trial court going on to hear a suit that ought to abate.
12. That to quicken the expeditious heating of the appeal, the appellant has compiled the records of appeal and bound same at its own cost.
13. That the record of appeal compiled by the appellant is hereby exhibited and caused to be marked as exhibit A.
14. That the notice and grounds of appeal filed by the appellants is at pages 42 to 46 of exhibit A.
15. That the appellant is praying the honourable court for an order for departure from the rules by allowing ……… records of appeal.
16. That the appellant is desirous for this appeal to be heard expeditiously as the five grounds of appeal contained in the notice of appeal are arguable grounds.”
On 21st March 2005, the plaintiff/respondent filed a counter opposition to the motion and also, filed a notice of preliminary objection. The respondent’s preliminary objection is that the applicant bank had been wound-up and liquidated on 12th March, 1998 by the Federal High Court; and that Nigerian Deposit Insurance Corporation (NDIC) had been appointed as the liquidator of the applicant and that therefore the applicant is dead, meaning, it can not appeal or maintain an action in court except through Nigerian Deposit Insurance Corporation.
The respondent’s affidavit in opposition filed on 21st March, 2005 are relevant and they read in paragraphs 1, 4, 5, 6, 7, 8, and 9 thus:
“1. That I am the Managing Director of the 1st respondent and as such conversant with all the facts of this case.
4. That the Nigeria Deposit Insurance Corporation (hereinafter called the “Corporation”) was on the 16th day of January 1998 appointed as Provisional Liquidator over the appellant/applicant.
5. That the Corporation applied to the Federal High Court, Enugu for an order winding up the appellant and on the 12th day of March, 1998, the court ordered that the appellant ‘is hereby wound up under the provisions of the Companies and Allied Matters Act 1990 and under the Banks and Other Financial Institutions Decree No. 25 of 1991 (BOFID).’
6. That a copy of the said Federal High Court order of 12th March 1998 is hereto annexed as and marked exhibit “A”.
7. That the 1st respondent’s solicitor Gordy Uche Esq., informs me and I verily believe him that the powers of the appellant/applicant to institute and/or prosecute this appeal have consequently being taken away by the operation of law and are now vested in the said Corporation.
8. That the said solicitor further informs me and I verily believe him that the appellant/applicant lacks the locus standi to institute and/or prosecute this appeal.
9. That no useful purpose will be served in granting the appellant/applicant the reliefs herein sought and they ought therefore to be refused.”
When applicant was duly served with the respondent’s notice of preliminary objection and the counter affidavit reproduced above, the applicant filed on 16th May, 2006 a 39-paged further affidavit sworn to by Emmanuel O. Eze, Esq. in support of application. Paragraphs 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 35 and 38 and they read thus:
“5. That I have seen the affidavit in opposition to the motion sworn by the 1st respondent’s Chief Okey Okeke on 21st March 2005 to which was attached exhibit A which is the winding up order made by the Federal High Court on 12th March, 1998 by which Nigeria Deposit Insurance Corporation (NDIC) was appointed the provisional liquidator of the applicant.
6. That I have also seen the notice of preliminary objection filed by Chuks Muoma Associates on 9/2/2006 on behalf of the plaintiff/respondent which is O.K. Contact Point Holdings Limited, the 1st respondent.
7. That in 1997 the said 1st respondent obtained a summary judgment in this same suit for the sum of N153,503,791.68 against the applicant and Mr. Godwin Ekwekwuo.
8. That the applicant and Mr. Godson Ekwekwuo the 2nd defendant in the said suit filed an appeal to the Court of Appeal in Appeal No, CA/PH/130M/97 and this Honourable Court delivered judgment in this same suit in favour of the applicant and the said 2nd defendant on the 8th day of March 2001.
9. That I hereby annex as exhibit B a copy of, the signed judgment of this Honourable Court delivered by Hon. Justice I.C. Pats-Acholonu J.C.A with which his learned brothers Hon. Justices J. O. Ogebe and Akpiroroh JJCA agreed.
10. That the 1st respondent in the argument of the said appeal did not raise the issue that the applicant was wound up on 12/3/98.
12. That after the said summary judgment was set aside by the Court of Appeal the 1st respondent by a motion ex parte moved the court to substitute for the applicant and the court obliged it with an ex parte order as the 1st respondent did not want to comply with section 417 of the Companies and Allied Matters Act by obtaining leave of court for continuing the suit and did not want to discontinue the suit as a provisional Liquidator was appointed on 12/3/98.
13. That the applicant filed a motion on notice to set aside the said ex parte order substituting NDIC in the said suit and this was argued at pages 25 to 28 of exhibit A and on 24/3/2003 the court granted the motion on notice and set aside the said substitution of NDIC in this suit.
14. That after this ex parte order was set aside the 1st respondent then filed the motion dated 31/3/2003 for the substitution of the applicant with NDIC which is the subject matter of this appeal. The said motion is at pages 14-21 of exhibit A while affidavit in opposition is at pages 21-24 of exhibit A.
15. That on 23/10/2003 the 1st respondent argued the said motion for substitution at pages 29 to 30 of exhibit A but when counsel for the applicant wanted to reply to the application on 7/7/2004 learned counsel for the 1st respondent objected on the ground that NDIC has been appointed a Liquidator and the applicant has no power to bring or defend an action. See page 31 line 21 to the end up to page 32 lines 1 to the end and page 33 line 1. 1st respondent was overruled.
16. That the 1st respondent did not want to comply with section 417 of the Companies and Allied Matters Act in maintaining this suit against the applicant after the appointment of a Liquidator on 12/3/98.
17. That on 2/11/2004 counsel for the applicant replied to the motion and submitted that under section 29 of Decree No. 39 of 1998 which is Banks and Other Financial Institutions (Amendment) Decree (BOFID) No. 38 of 1998 which amended section 38 of BOFID that a suit shall not be instituted against a Bank for which NDIC has assumed control and where such a proceeding has been instituted against the Bank it shall abate, cease or be discontinued without further assurance other than this decree. This is contained in the new sections 38A(1) and (2).
18. That counsel for the applicant also argued that section 417 of CAMA was also not complied with. See pages 34 to 35 of the exhibit A and therefore argued that the suit filed against the applicant is incompetent and the court therefore lacks the jurisdiction to entertain same.
19. That learned counsel for the 1st respondent replied from page 35 line 13 up to page 37 line 10.
20 That the learned trial Judge delivered his ruling in favour of the 1st respondent at pages 38 to 41 of exhibit A which is the subject matter of this appeal.
21. That the compilation of the records of appeal is the function of the registry of the lower court. 22. That if the lower court’s registry compiled the record of appeal this preliminary objection by the 1st respondent would not have arisen until after the filing of the appellant’s brief of argument and perhaps after the filing of the respondent’s brief of argument.
23. That an appeal is not argued at the stage of the compilation of the record of appeal which is what the applicant’s application for departure from the rules is all about and the notice of preliminary objection and the affidavit in opposition to motion are premature as they did not state that any document was missing in exhibit A.
24. That the order for winding up of a limited liability does not mean the death of the company and a company only dies when it is dissolved and is struck out of the Register of Companies.
25. That a company being wound up by NDIC cannot be dissolved or struck out of the register of companies until it is fully wound up.
27. That in respect of the Banks when a winding up order is made the licence issued under BOFID withdrawn but the Bank continues as a Limited Liability Company under liquidation as NDIC is appointed a liquidator and it does not die until it is fully liquidated and is then dissolved and it does not die until it is fully liquidated and is then dissolved and its name struck off the register of companies.
28. That as at the year 2004 NDIC was liquidating 32 (thirty-two) Banks of which Progress Bank of Nigeria Plc is No. 20 was on the list.
29. That as at December 2004 all the Insured Depositors of Progress Bank of Nigeria Plc which are all those who deposited N50,000.00 below have been fully refunded their deposits.
30. That in respect of Progress Bank of Nigeria Plc the uninsured depositors, that is those who had deposits above N50,000.00 were refunded sixteen percent, nine percent and eight percent respectively on a reducing balance basis and this came to a figure of 28.92% leaving 71.08% of their deposits still unpaid.
31. That after the uninsured depositors are fully paid, the ex-staff of the bank, creditors and other claimants will be paid their entitlements being in mind their priorities before the applicant is fully wound up and will be dissolved and its name struck off the register.
32. That the last payment of eight percent stated above and paid to uninsured depositors was made in the year after which NDIC published ‘notice to depositors of Banks in Liquidation’ which I hereby annex as exhibit C in which Progress Bank of Nigeria Plc the applicant is shown as No. 27.
33. That NDIC is still recovering the debts due to the applicants and other Banks in Liquidation and once it gathers enough money it will pay another liquidation dividend based on the money it has recovered.
35. That the applicant has not been fully wound up as only 28.92 percent of its uninsured deposits have been paid and it is not dead as a limited liability but it is a failed bank the licence of which has been withdrawn.
38. That 1st respondent’s affidavit and the preliminary objection are premature as their contents are the subject matter of the appeal which will come up after the briefs of argument have been filed.”
On the last adjourned date, this court directed the parties to submit their written addresses in respect of the motion and the preliminary objections as well as their respective affidavits and counter-affidavits. Counsel has complied with their written addresses.
The applicant has contended that in the notice of preliminary objection, the respondent did not question the accuracy of the record of appeal sought to be admitted or deemed as the record of appeal. That the respondent is merely saying that, the applicant Bank, had been wound up, and liquidated since 1998, and that it is only NDIC that can represent the applicant. Learned counsel for the applicant has summarized the brief facts of this suit when parties were at the trial court in suit No. HOS/291/96 at Osisioma High Court Abia State, between the same parties.
This summary fact is clear at pages 2 – 3 of the written address of the applicant. The further submission of learned counsel for the applicant is that, winding up order does not mean the death of a company and: that a company will die only when same is dissolved and its name is struck out from the register of companies. That NDIC is still winding up the applicant banks and, only 28.92% of its uninsured deposits have been refunded, leaving a balance of 71.08% still intact; and that ex-staff of the Banks creditor and other claimants will be paid their entitlements as NDTC is still recovering money from the applicant’s debtors before it is dissolved.
Learned counsel has submitted exhibit ‘c’ showing liquidation that the applicant No. 27 on the list of depositors is still winding up progressively with NDIC:
Learned counsel for the applicant has argued forcefully, that under section 417 of the Companies and Allied Matters Act (CAMA) 1990, any person or company who wants to institute a proceeding against a winding company like the applicant, has to obtain leave of the court first before the suit can be considered. Learned counsel then referred to and relied on the decisions of this court in Cooperative & Commerce Bank (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65, 74; Co-operative and Commerce Bank (Nig.) Plc v. Mbakwe (2002) 3 NWLR (Pt. 755) 523, 528; ICON Ltd. (Merchant Bankers) v. F.B.N. (Merchant Bankers) Ltd. (2003) 12 NWLR (Pt. 835) 668, 677 and Onwuchekwa v. NDIC (Liquidator of Co-operative & Commerce Bank Nig. Ltd.) (2002) 5 NWLR (Pt. 760) 371, 393 to support his position that the applicant bank is not prohibited under section 417 of Companies and Allied Matters Act (CAMA) from proceeding with action against another person and that what is prohibited is that, there will be no proceedings against a winding company unless leave of court is first applied and granted. Counsel urges this court to overrule the respondent’s preliminary objection.
On the part of the respondent, its grounds of preliminary objection are that:
(a) the purported applicant is not a juristic person;
(b) that the purported applicant has been wound up and liquidated:
(c) that a dead person cannot litigate or maintain an action in court, except through a legal representative who must in the instant case, be the liquidator. i.e. NDIC:
(d) that there is no applicant before this court in this motion: and
(e) that for the above reasons; the motion/application is incompetent and robs this court the jurisdiction to entertain same.
In my considered view, the respondent’s bases are similar and identical to his paragraphs 4-9 of the affidavit in opposition to motion reproduced earlier above. There is no doubt that exhibit A is a Federal High Court’s order directing NDIC to wind up the applicant; and the applicant is not even disputing this fact. Respondent’s counter motion in paragraphs 7 and 8 even to the extent of repetition is that:
“7. That the 1st respondent’s solicitor Gordy Uche Esq. informs me and I verily believe him that the powers of the appellant/applicant to institute and/or prosecute this appeal have consequently been taken away by the operation of law and are now vested in the said corporation.
8. That the said solicitor further informs me and I verily believe him that the appellant/applicant lacks the locus stand to institute and or prosecute this appeal.”
In my considered view, the two-paragraph affidavit reproduced above is just making the same issue and are therefore repetitive. Section 417 of Companies and Allied Matters Act (CAMA) has been profusely applied by this court and the Supreme Court. It is stated by this court in Co-operative & Commerce Bank (Nig.) Ltd v. Onwuchekwa (supra) that the fact of winding up of a company or the appointment of a liquidator i.e. the NDIC in this instant case does not by itself result in the death of a corporate body as the applicant in the instant appeal matter. It is further, declared by this court that quite contrary, section 417 of the Companies and Allied Matters Act (CAMA) has clearly provided action or proceedings against a wound up company and or for whom a liquidator is appointed is maintainable with the leave of the court. This same court has maintained that, a company under a winding-up proceeding, is not yet dead. It is still alive, but perhaps sick – see Co-operative and Commerce Bank (Nig.) Plc v. Mbakwe (supra).
The mere assumption that a company under liquidation is dead can only be heard by unlearned gentleman as stated by the Managing Director of the respondent in his affidavit in opposition. This is a wrong presumption. The respondent has woefully failed to rebut the overwhelming solid facts of the applicant stated in paragraphs 23, 24, 25, 27, 28, 29, 30 – 35 of its further affidavit. Paragraphs 7 and 8 of the applicant’s affidavit have stated that the trial Judge delivered a ruling in favour of the respondent and the applicant was dissatisfied and therefore filed notice of appeal on 9th December, 2004 to this court. Once a party is dissatisfied with the decision of a court, there is a fundamental constitutional right to appeal. Once there is right to appeal then there is locus standi. The respondent wants to rob the applicant of his fundamental right to appeal. This is unacceptable in this court.
Finally, the preliminary objection is overruled. The effort to deny the applicant to file and deem the bundle of documents as record of appeal is premature. No reasonable court can dismiss an appeal without a record of appeal and hear it on merit. Applicant’s motion is granted to compile the record of appeal and the annexed document marked exhibit A is deemed properly filed and served as from today. Costs of N5,000.00 in favour of applicant.
RHODES-VIVOUR, J.C.A.: In suit No. HOS/291/96 in the High Court of Abia State, Holden at Osisioma the respondent, O. K. Contact-Point Holdings Ltd sued the appellant, Progress Bank Nig. Plc (1st defendant) and Godson Ekweruo (2nd defendant).
By way of motion on notice brought under Order 11 rule 16 of the Abia State High Court Rules, 2001 the respondent (then the plaintiff) sought the following orders.
“1. An order substituting the 1st defendant with the Nigerian Deposit Insurance Corporation (NDIC).
2. An order striking out the name of the 2nd defendant as a party in the suit.”
The learned trial Judge E. I. Ejelonu, J. heard submissions from counsel and in a ruling delivered on 06/12/04 granted both reliefs.
Dissatisfied with the learned trial Judge’s ruling the 1st defendant, Progress Bank of Nigeria Plc filed a notice of appeal on 09/12/04 and on 14/02/05 filed a motion on notice for departure from the rules to be allowed to compile the records of appeal and that same be deemed as properly filed and served.
Learned counsel for the respondent, Chief C. Muoma, SAN quickly filed a preliminary objection on the following grounds:
“1. The purported applicant is not a juristic person.
2. The purported applicant has been wound-up and liquidated.
3. A dead person cannot litigate or maintain an action in court, except through a legal representative who must in the instant case be the liquidator.
4. There is no applicant before this Honourable Court in this purported motion or application.
5. For the above persons the motion/application is incompetent and robs this Honourable Court of the jurisdiction to entertain it.”
Both sides agree that on 12/03/98 the Federal High Court, Enugu ordered that Progress Bank of Nig. Plc (the applicant) be wound up under the provisions of the Companies and Allied Matters Act, 1990 and under the Banks and other Financial Institutions Decree No. 25 of 1991 (BOFID).
The issue for determination which in effect covers all the grounds in the preliminary objections is:
“whether a company that is wound-up ceases to exist or whether such a company can maintain an action in court.”
In considering the above, the provisions of Sections 454 and 417 of the Companies and Allied Matters Act, 1990 are relevant.
They provide as follows:
“454(1) If the affairs of a company have been fully wound-up and the liquidator makes an application in that behalf, the court shall order the dissolution of the company and the company shall be dissolved accordingly from the date of the order.
2) A copy of the order shall, within fourteen days from the date when made, be forwarded by the liquidator to the Commission who shall make in its books a minute of the dissolution of the company.
417 If a winding-up order is made or a provisional liquidator is appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court given on such terms as the court may impose.”
On 15/01/07 we heard both counsel. I must say straight away that there is a world of difference between the winding-up of a company and the dissolution of a company.
Under the provisions of section 454(1) and (2) of the Companies and Allied Matters Act, 1990 a company dies once the court orders the dissolution of the company. The revocation of the licence of the Company/Bank and order of court winding up same does not indicate its death. The appointment of a Liquidator is for the purpose of ensuring the smooth burial of the company. See Nzom v. Jinadu (1987) 1 NWLR (Pt. 51) 533; C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt. 647) 65.
There is nothing before us to show that Progress Bank of Nigeria Plc has been dissolved. It is so clear that the said Bank is under a winding up proceedings. In such a state the Bank is seriously ill, but not dead. That is the purport of section 417 of the Companies and Allied Matters Act, 1990.
My Lords, a Company/Bank is certified dead on its dissolution, but where the Bank as in this case is under winding up proceeding it has not died. It is gravely ill. It can sue and maintain an action in court, but no action or proceeding can be brought against it except with the leave of the court.
The application by the applicant seeking departure from the rules of this Court to compile records to be relied on in the appeal is in the circumstances very much in order. The applicant’s power to sue only ceases when it is dissolved. For this and the reasoning in the leading ruling delivered by I. Thomas, JCA., which I had the opportunity of reading in draft I too, also overrule the preliminary objection. I abide by the order made including order as to costs.
SAULAWA, J.C.A.: I have had the privilege of reading the draft ruling prepared and delivered by my learned brother. Istifanus Thomas, JCA. I have no hesitation in concurring with the reasoning and conclusion reached therein. However, I have deemed it expedient to make the following contribution.
As it would appear from the undated motion papers filed on 13/02/2005, the appellant/applicant has prayed this court for the following reliefs:
1. An order allowing the defendant/respondent/appellant/applicant to depart from the rules by allowing it to compile the records of appeal in this suit.
2. An order that the records of appeal compiled by the defendant/respondent/appellant/applicant and herein annexed and marked as exhibit A be used as the record of appeal in this suit and that the same be deemed as properly filed and served.
My learned brother, Istifanus Thomas, JCA, has extensively reproduced the averments contained in the affidavit and further affidavit of the applicant as well as the respondent’s affidavit in opposition to the motion. Thus, its no longer expedient to recount them therein. Suffice it to allude to paragraphs 16-18 of the appellant/applicants affidavit thus:
16. That the appellant is desirous for this appeal to be heard expeditiously as the five grounds of appeal contained in the notice of appeal are arguable grounds.
17. That the plaintiff/respondent will not be prejudiced by the grant of this application.
18. That the appellant will be unduly prejudiced and embarrassed if this application is refused.
On the other hand, the 1st respondent’s affidavit in opposition to the application is. inter alia, to the effect that –
5. That the Corporation applied to the Federal High Court Enugu for an order winding up the appellant and the 12th day of March 1998, the court ordered that the appellant “is hereby wound up under the provisions of the Companies and Allied Matters Act 1990 and under the Banks and Other Financial Institutions Decree No. 25 of 1995 (BOFID)”…
8. That the said solicitor further informs me and I verily believe him that the appellant/applicant lacks the locus standi to institute and/or/prosecute this appeal.
9. That no useful purpose will be served in granting the appellant/applicant the reliefs herein sought and they ought therefore to be refused.
The 1st respondent has also filed on 09/02/06 a notice of preliminary objection challenging the competence of the application on the grounds that the appellant/applicant had been wound up and liquidated, thus can not litigate or maintain an action in court save through a legal representative i.e. the liquidator.
In response to the 1st respondent’s affidavit in opposition, the appellant/applicant filed a further affidavit to the effect, inter alia, that –
23. That an appeal is not argued at the stage of compilation of the record of appeal which is what the applicants/application for departure from the rules is all about and the notice of preliminary objection and the said affidavit in opposition to the motion are premature as they did not state that any document was missing in exhibit A.
24. That the order for winding up of a limited liability company does not mean the death of the company and a company only dies when it is dissolved and is struck out of the Register of companies.
25. That a company being wound up by NDIC can not be dissolved or struck out of the Register of companies until it is fully wound up.
35. That the applicant has been fully wound up as only 28 – 92 percent of its uninsured deposits have been paid and it is not dead as a limited liability company but it is failed bank the licence of which has been withdrawn….
37. That it is unconscionable for the same 1st respondent to argue that applicant died in 1998 when it continued to maintain this suit against it from 1998 until 2005 and only raised this issup when applicant applied for departure from the rules.
38. That, the 1st respondents affidavit and the preliminary objection are premature as their contents are the subject matter of the appeal which will come up after the brief of argument have been filed.
It’s trite that this court has a far reaching discretionary power under the prevailing rules thereof to entertain the instant application and grant same, in the interest of justice. See most particularly Order 7 rules 2 and 3 of the Court of Appeal Rules, 2002 thus:
“2. The court may direct a departure from these rules in any way this is required in the interest of justice.
3(1) The court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these rules or any part thereof.
(2) Where there is much (sic) waiver of compliance with the rules. the court may. in such manner as it thinks right, direct the appellant or the respondent as the case may be. to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.
It’s trite that by the above rules, this court has an unfetted discretionary power to make an order for departure from the rules thereof in appropriate cases. Undoubtedly, the discretionary power in question is accorded the court with a view to facilitating the expeditious hearing and determination of an appeal before it. See Minister of Works and Housing v. Tomas (Nig.) Ltd. & 26 Ors. (2001) 10 NWLR (Pt. 721) page 295 at 297 per Musdapher, JCA (as he then was).
I have accorded an ample, albeit very critical, consideration upon the circumstances surrounding the instant application, the averments contained in the patties’ affidavits, the exhibits attached thereto, the notice of preliminary objection filed by the 1st respondent, as well as the written addresses of the two learned counsel. There is no doubt that in view of the averments contained in the affidavit and the further affidavit of the appellant/applicant, this is a most appropriate case in which this court ought to exercise its discretionary power under Order 7 rule 2 (supra) and order a departure from the rules thereof.
Thus, as it would appear, the 1st respondent’s affidavit in opposition and notice of preliminary objection are rather preposterous and ought to thus be discountenanced. It is trite that it has cherishingly become an accepted practice in our courts not to object to applications for departure from the rules. And the wisdom that informed the acceptance of such a well cherished practice is no other than the desire to hear and determine appeals expeditiously on records as complied by appellants. The procedure, as provided under Order 7 rule 2 of the Court of Appeal Rules, 2002, is certainly predicated on the interest of justice and fairness. See Obasanya v. Omolaja (2001) 2 NWLR (Pt. 697) 266 at 277 paragraphs A-B. Lamenting on the unfortunate culture of delay that has for decades permeated the administration of justice system in the country, this court duly observed in Obasanya’s case (supra) thus:
“Any one used to our appeal system particularly as regards compiling of records of appeal would attest to the excruciating experience of getting records of appeal compiled by the registry. It could take us many as three to four years to compile. I find the reliefs tenable. Per Chukwu Eneh, JCA, at page 277 paragraphs C – D. There is no doubt that the attendant delay in compilation of records of appeal from the courts below to this court tends to defeat the course of justice, thus a negotiation of the well cherished provisions of section 36(1) of the Constitution of the Federal Republic of Nigeria which provide thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Hence, in the light of the foregoing postulations and the more detailed reasoning and conclusion reached in the lead ruling, I too am of the firm view that the instant application has merit and it’s accordingly hereby granted by me.
I abide by the order of costs of N5,000.00 awarded in favour of the appellant/applicant. Application granted.
Appearances
Chief O. Ugolo, SAN (with him, I. I. Iloani)For Appellant
AND
Chief Chuks Muoma, SAN (with him, Gordy Uche, Esq., A. N. Muoma (Mrs.), F. N. Eke (Mrs), K. B. Ottan, Esq.)For Respondent
