FEDERAL MORTGAGE BANK OF NIGERIA v. GEORGE CHINAGOROM & ANOR (2019)

FEDERAL MORTGAGE BANK OF NIGERIA v. GEORGE CHINAGOROM & ANOR

(2019)LCN/13009(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of March, 2019

CA/OW/63/2009

RATIO

PRIVY: DEFINITION

Explaining who a privy is in a suit, my learned brother, George Will JCA, said in the case of Agbalajobi & Anor Vs Gov. Lagos State (2017) LPELR 41955 (CA):

the word privy has been defined so succinctly as A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of Res-Judicata, one who, after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment. See Black’s Law Dictionary 6th Edition at page 1200. See also Daniel Vs Kadiri (supra); Chief Oyelakin Balogun Vs Pastor Moses Afolayan (2005) ALL FWLR (Pt. 85) 331 at 334; Kola Adedeji & Anor Vs Olunba Segun Adebayo & Ors (2012) LPELR 7990 (CA).PER ITA GEORGE MBABA, J.C.A.

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

Between

FEDERAL MORTGAGE BANK OF NIGERIA – Appellant(s)

AND

1. GEORGE CHINAGOROM

2. FEDERAL MORTGAGE FINANCE LIMITED – Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Decision of Imo State High Court in Suit No. HOW/562/2001, delivered on 30th June, 2009, by Hon. Justice A.O.H. Ukachukwu, wherein the trial Judge dismissed the application of Judgment/Debtor, who sought an order to set aside the execution/attachment levied and conducted in the Suit against it on or about 26/7/2007.

On 21/5/2007, the trial Court had entered judgment for Plaintiff (now 1st Respondent) against Federal Mortgage Finance Ltd as follows:

(1) The Defendants, by themselves, their agents and/or privies are hereby compelled to render proper accounts of all Plaintiff?s payment put at N640,475.76 (Six Hundred and Forty Thousand, Four Hundred and Seventy-Five Naira, Seventy-Six Kobo) and to return all payments in excess of principal and Interest Charges above 20% (Maximum) if any and to return the excess payments along with his title documents to the Plaintiff.

(2) The discharge of the collateral for the loan transaction.

(3) The Defendants are further perpetually restrained from either by themselves, their agents or assigns from

molesting, harassing, disturbing, intimidating and/or attempting to foreclose or sell the Plaintiff?s mortgaged property at No. 12 Umuechem Road, Ariaria Abain Abia State of Nigeria.

(4) There will also be cost of N4,000.00 in favour of the Plaintiff.?

Appellant herein, filed a motion on 8/5/2008, seeking:

(1) An order of Court setting aside the execution/attachment levied and conducted in the above case against the Applicant on or about 26th July, 2007

(2) An order staying further execution/attachment or further steps in the execution/attachment of the property of the Applicant, pending the determination of this application.

(3) An order releasing, forthwith, to the Applicant, the following items or property belonging to the Applicant, now under attachment, namely:

(a) The FMGN official Car, a Peugeot 504 Car with registration No. FG ? C 20;

(b) 1 No. thermacol 200 refrigerator;

(d) 1 No stabilizer;

?(4) An order perpetually restraining the Plaintiff either by themselves, his agents including the

Court bailiff from further execution, attachment or selling or advertising to sell or from taking any steps thereof.

(5) An order generally restoring the status quo pending the determination of this application

As grounds for the application, Applicant said that:

(a) The Applicant is not a party to Suit No. HOW/562/2001 between Mr. George Chinagorom Vs Federal Mortgage Finance Ltd

(b) The Applicant is a separate legal entity from Federal Mortgage Finance Ltd., the Defendant in the above Suit.

(d) The Plaintiff had no transaction with the Applicant, a separate legal entity. See pages 46 ? 47 of the Records of Appeal.

In the Supporting Affidavit to the motion, Applicant said, in paragraphs 6 & 7 thereof:

?That instead of the Plaintiff/Judgment Creditor/Respondent executing the judgment against the Defendant/Judgment Debtor, he executed and attached the items and property of the Applicant namely:

(7) That the Applicant is not a party to the Suit No. HOW/562/2001. (Pages 48 ? 49 of the Records)

The Respondent had filed a Counter affidavit and averred:

(6)(a) That the entire facts of the action and all the transaction that constitute the cause of action involve the applicant.

(b) That the applicant briefed A.O. Agbo Esq., who settled their statement of Defence in the action.

(c) That the facts of the action as shown in the pleadings and all the exhibits which was (sic) before the Court clearly show that the applicant were (sic) the actual party sued and for whom the orders of the Court was made;

(d) That some copies of the exhibits are further exhibited in this affidavit for ease of consideration and they include the offer letter Exhibit A1 and A2. Some of the correspondence Exhibits A3, A4 and A5, which is the deed of mortgage.

(e) That even in one of the correspondence of 1st November, 2001, from the applicant it clearly shows that they are the same. See page 3 of the Records.

After hearing the arguments of Counsel on both sides, for and against the application, the trial Court held:

?Having considered the issues and Exhibits and address of Counsel, it seems to me that the issue for determination is whether, in the circumstances of this case, the Execution on the property of the Applicant is proper and justified. I have studied the affidavit in support of the application as well as the counter affidavit of the respondent. I do not find any further affidavit of the applicant or the Exhibits, allegedly exhibited with it. In any case, the said Exhibits are either exhibited and are available to the Court as the Writ of Summons and Judgment was delivered in the Suit on 21st May, 2007, while the attachment subject of the application was effected on 27th July, 2007? There are the averments contained at paragraphs 6(a) ? 6(g) of the respondents Counter affidavit, which were also evident in Exhibit A of the Applicant? In my view, the above averments were not traversed or effectively traversed.

In my view, the difference between the judgment Debtor and the applicant was merely in name and not in substance or responsibilities to customers. Based on the above as well as the following:

(a) The entire statement of defence adopted the transaction of the Plaintiff/Respondent and the applicant as between it and the Plaintiff/Respondent.

(b) The defendant Judgment/Debtor did not raise the issue of its legal status vis-vis the applicant. It merely abandoned the proceedings after a period.

(c) The applicant slept over his alleged right for well over 1 (one) year and Judgment and Attachment of its property complained of.

(d) The Respondent?s averment that the items had been sold was not traversed.

I shall and do resolve the only issue in favour of the Judgment Creditor/Respondent. This application is dismissed with N5,000.00 cost against the applicant to the Respondent.? (See pages 94 ? 96 of the Records).

That is the decision Appellant appealed against, as per the Amended Notice of Appeal, filed on 19/6/2017 and deemed duly filed on 29/11/17. Appellant filed his brief of argument on the same date (19/6/17) and it was also deemed duly filed on 29/11/17. The Supplementary Records of Appeal was also deemed duly transmitted to this Court on 29/11/17.

In the Brief of Argument, Appellant distilled 4 Issues for the determination of the Appeal, as follows:

(1) Whether the Appellant, Federal Mortgage Bank of Nigeria, and the 2nd Respondent, Federal Mortgage Finance Ltd, are not two distinct legal entities having separate corporate personalities with respective rights, duties, obligations and liabilities (Ground 3 of the Amended Original grounds).

(2) Whether the failure of the trial Court to consider the Appellant?s further affidavit in support of the application to set aside wrongful attachment and execution of judgment on Appellant?s property did not fundamentally affect the decision of the Court to the prejudice of the Appellant such as to vitiate the whole decision (Ground 5 of the Additional Grounds of Appeal).

(3) Whether the trial Court was right to uphold the attachment and execution of its judgment on a non-party to the Suit wherein the judgment was delivered and to make consequential orders against such a non-party to the Suit (Grounds 1 and 4 of the Amended Original grounds of Appeal).

(4) Whether the learned trial Judge was right to have refused the application to set aside wrongful attachment/execution of judgment, on the ground that the applicant had allegedly slept on his right, when

same application raised substantial issue of law that went to the jurisdiction of the Court. (Ground 2 of the Amended Original grounds of Appeal).

The Respondent did not file any brief. I must however, comment that Appellant made the process quite unwieldy, by filing both Amended Notice of Appeal and Additional Grounds of Appeal side-by-side, and relying on them, separately, to found this appeal. He even caused the two to be deemed duly filed, on 29/11/17, for the purpose of this appeal!

?This Court must have been very busy on 29/11/17, to have glossed over such anomaly of allowing Amended and Additional Grounds of Appeal to operate, side by side. The usual practice is to grant leave to amend Notice of Appeal, by adding to, subtracting from, correcting or otherwise, amending the existing notice of appeal and incorporating the said amendments into the Amended Notice of Appeal filed, with the leave of Court. In that circumstance, there cannot be an Additional Notice of Appeal after the filing of the Amended Notice of Appeal, and same independent of the Amended Notice of Appeal. See the case of CA/OW/19/2015: Loius A.N. Onwubu Vs Mr. Ernest Onwubu & Anor,

delivered by this Court on 30/11/2018, where we observed (on page 6 thereof):

?Appellant also prayed on the same 14/4/16 and was granted order:

?Deeming the brief of Argument arising from both the original grounds and additional grounds of appeal as being properly argued filed and served.? It is odd and inconveniencing for this Court to hear the appeal on both the Notice and Grounds of Appeal and the Additional Grounds of (and it is no longer fashionable to do so, as Appellant should have filed an Amended Notice of Appeal to incorporate both the original and additional grounds). But I think, we have to condone the flaws, made on 14/4/16, regularizing the processes, including the Additional Grounds of Appeal and the Appellant?s Brief as being properly before this Court.? (Underlining Mine).

Appellant?s Amended Notice of Appeal in this case was dated 10/6/17 and filed on 19/6/2017, while the Additional Grounds of Appeal was prepared earlier on 10/6/2014, and filed on 23/6/14. Both were exhibited to the motion of Appellant, filed on 7/11/16, for leave to deem them duly filed and served.

As earlier stated, the said Additional Grounds of Appeal (carrying Ground 5 of the Appeal) should have been made part of (and ground 5) in the Amended Notice of Appeal, especially as the same was in existence before the motion to amend the Notice of Appeal!

I shall also give the flawed processes the same treatment of the case of Onwubu Vs Onwubu & Anor (Supra), by condoning the error, since we had earlier deemed the Additional Grounds of Appeal as duly filed, inadvertently. I shall, therefore, consider the appeal on the Issues distilled from both the Amended Notice of Appeal and from the Additional Grounds of Appeal.

Arguing the Appeal on 22/1/19, Appellant?s Counsel, Kelechi Nwaiwu Esq., on Issue one, submitted that the Appellant (FMBN) and the 2nd Respondent FMF Ltd., are two distinct legal entities, each having its own separate corporate personality with respective rights duties, obligations and statutory corporation, expressly created by the Federal Mortgage Bank of Nigeria Act, having its own separate existence and distinct legal personalities. He relied on the Section 1 of the FMBN Act Cap F16, LFN 2004. He said that Federal Mortgage Finance Ltd (2nd Respondent)

is a company registered under the Companies and Allied Matter Act as a separate legal entity, to carry on with all of such mortgage business and functions as assigned to it under the Federal Mortgage of Nigeria Act – Section 23 of the FMBN Act (Supra). He said that the legal personality of a statutory corporation varies, substantially, from the legal personality of an incorporated company, in that while a company acquires its separate legal personality upon incorporation (i.e. registration under the relevant law) the legal personality of a statutory corporation is as conferred upon or by the statute creating it. Counsel relied on Section 37 of the Companies and Allied Matters Act and the case of CBDI Vs COBEC Nig. Ltd (2004) 13 NWLR (Pt. 890) 376 at 394; Anozia Vs A.G. Lagos State (2010) 15 NWLR (Pt.1216) 207 at 239.

Counsel referred again to Section 23 of the FMBN Act for the definition of Appellant and the 2nd Respondent in the same law, and said that, because the 2nd Respondent was established, pursuant to FMBN Act which also created the Appellant, ?it may therefore be seemingly argued and easily misconstrued that the 2nd Respondent is a

subsidiary of the Appellant with interwoven corporate/legal personality for which either may sue or be sued interchangeably for the other.? He added ?that even though the 2nd Respondent may be a subsidiary of the Appellant, that does not defeat the separate legal existence and status of the two entities.? He relied on the case of FBIR Vs IDS LTD (2009) 8 NWLR (Pt.1144) 615 at 643 ? 644; Okomu Oil Palm Co. Ltd Vs Iserhienrhien (2001) 6 NWLR (Pt.710) 666 and Aso Motel Kaduna Ltd Vs Deyemo (2006) 7 NWLR (Pt.976) 87.

Counsel said the trial Court was therefore wrong, when it held that ?the difference between the judgment debtor and the applicant was merely in name and not in substance or responsibilities to customers.?

Counsel however conceded:

?that the 2nd Respondent only came into existence after the promulgation of the FMBN Decree No. 83 of 1993 (now Cap F16 LFN, 2004) and under the said law the Mortgage businesses initially carried on by the Appellant under the predecessor FMBN Decree No. 7 of 1977 (later Cap 118 LFN 1990) were expressly transferred to the 2nd Respondent, together with the rights,

liabilities, responsibilities and obligations arising from and relating to such mortgage businesses.? (See paragraph 7.1.10 of Appellants Brief page 26 of the Records).

He referred us to Section 21(3) of the FMBN Act and to Section 2(1) (d) of the repealed FMBN Act 138 LFN 1990, whereby the Appellant, before the promulgation of the FMBN Decree No. 83 of 1993, was vested with some functions amongst which was the carrying on of Mortgage business and transactions with the Nigerian public (individuals).

Counsel added that Appellant, by the FMBN Act Cap F16 LFN 2004, is only vested with managerial and supervisory functions over mortgage institutions operating in the country; that Appellant no longer carries on mortgage transactions with members of the public, which is the subject matter of the 1st Respondent?s case at the trial Court, as same function has been transferred to the 2nd respondent, under the extant FMBN Act, 2004.

On Issue 2, Counsel said that the failure of the trial Court to consider the further affidavit in support of the application to set aside wrongful attachment and execution of judgment on Appellant?s property,

fundamentally, affected the decision of the trial Court, to the prejudice of the appellant such as should vitiate the whole decision of the trial Court. He said that Appellant was deprived the opportunity to benefit from the further affidavit in support of the motion to set aside the attachment/execution. Counsel referred us to page 94 of the Records of Appeal, where the trial Court said it ?did not find any further affidavit of the applicant or the Exhibit allegedly attached with it to traverse the averments in paragraphs 6(a) ? 6(g) of the Respondent?s Counter affidavit.

Counsel said that, contrary to the findings of the trial Court, Appellant (as Applicant) filed a further affidavit, with exhibits, attached, dated 2/10/08. He referred us to pages 57 to 61 of the Records of Appeal. He added that paragraph 6(a) ? 6(g) of the Counter affidavit by the Respondent, were sufficiently traversed and debunked by the Appellant, by means of the further affidavit ? paragraphs 4 to 5 thereof. Counsel submitted that before a trial Court can come to a competent and just and conclusive decision in a Case, it must, as a

matter of duty, consider all evidence, documentary or oral, properly adduced before it. He relied on the case ofFASHANU VS ADEKOYA (1974) 1 ALL NLR (Pt. 1) 35 at 91; Balogun Vs Agboola (1974) 10 SC 111; Ebba Vs Ogodo (1984) 4 SC 84.

Counsel said that at interlocutory proceedings, the form of evidence adducible for the Court?s consideration, are basically affidavit evidence, either in support or in opposition to the reliefs sought by the interlocutory application; that in the words of Niki Tobi JCA (as he then was) in ACB LTD VS Nnamani (1991) 4 NWLR (Pt.186) at 498, he said:

?What a Court of law should do is to make use of the available materials before it and in this con the available evidence, and come out with some figure which it thinks will satisfy or meet the justice of the case. A Court can only give that much that the evidence at its disposal proves.?

Counsel, therefore, said that the observation of the trial Court that it did not see the further affidavit, did not absolve the trial Court of its duty to consider the said further affidavit as part of the evidence properly adduced before it for a just determination of the application; ?

he added that the alleged absence of the further affidavit from the Court?s file, as at the time the learned trial Judge delivered his ruling on the application, was not the making of the applicant for which he should suffer from. Thus, the decision of the trial Court, reached without the consideration of the further affidavit was in breach of the trial Court?s duty to consider all evidence adduced before it in respect of the matter it was called upon to determine; that an overt prejudice was worked on the case of the Appellant. He called on us to re-evaluate the evidence, inclusive of the further affidavit of applicant to reach a just decision. He relied on the case of Salako Vs Dosunmu (1997) 8 NWLR (Pt. 517) 371 at 394.

On Issue 3, whether the trial Court was right to uphold the attachment and execution of its judgment on a non-party to the Suit wherein the judgment was delivered and to make consequential orders against such non-party, Counsel answered in the negative. He said it is trite law that parties to a Suit, means only persons (natural and juristic) named on the records of the Court in respect of particular Suit.

Bello Vs INEC (2010) 8 NWLR (Pt. 1196) 342; that Appellant was not a party on the records in the Suit at the Court below, and so the attachment and execution order on the Appellant on 21/5/2001, was incompetent. He relied on Babatola Vs Aladejana (2001) 12 NWLR (Pt. 728) 297.

On Issue 4, whether the trial Court was right to refuse the application to set aside the order of attachment/execution, on the ground that Appellant had slept over its right, Counsel answered in the negative. He said that Appellant did not sleep on its right to have the attachment/execution set aside; that upon becoming aware of the wrongful attachment/execution on its moveable property, on 26/7/2007, it promptly filed an application on 10/9/2007 for the said wrongful attachment/execution to be set aside, but the application was struck out on 5/5/2008, on technical grounds; that another application was filed, promptly, which resulted in this appeal.

Counsel said that the issue before the trial Court was, whether the Court had the vires and requisite jurisdiction to order an attachment/execution of its judgment on a non-party to the Suit wherein the said judgment was obtained;

that the said issue was one of law, and such issue of law cannot be shelved from determination on the ground that the application was not brought, timeously; he said that there is no time limit to bringing an application challenging the action(s) or orders of a Court, made without requisite jurisdiction, as issue of jurisdiction can be raised at anytime. He relied on Ezomo Vs Oyakhire (1985) 1 NWLR (Pt. 2) 195; Saude Vs Abdullahi (1989) 4 NWLR (Pt.116) 387; Yusuf Vs Co-operative Bank Ltd (1994) 7NWLR (Pt. 359) 676 at 689.

He added that there cannot be a waiver of a fundamental defect in competence/vires of a Court in respect of any cause or matter; that no the Court, on its own volition or by acquiescence of parties, can confer upon itself jurisdiction, where and when same is lacking ? Odofin Vs Agu (1992) 3 NWLR (Pt. 229) 350 and Dalfam Nig. Ltd Vs Okaku Int?l Ltd (2001) 15 NWLR (Pt.735) 203 at 251.

He urged us to resolve the Issues for the Appellant and to allow the appeal.

As earlier stated in this judgment, the Respondents filed no brief in this appeal.

RESOLUTION OF THE ISSUES

I shall consider this appeal on the 4 Issues distilled by the Appellant, but I think the 4 Issues can be further summarized into two, namely:

(1) Whether the Appellant (Federal Mortgage Bank of Nigeria) and the 2nd Respondent (Federal Mortgage Finance Bank Ltd.,) are two separate and distinct legal persons, for the purpose of this case, to shield Appellant?s property from being attached in the execution of judgment against 2nd Respondent, on the ground that Appellant was a non-party to the Suit.

(2) Whether the trial Court was right to refuse the application to set aside the said attachment/execution of the judgment on the property of the Appellant, in the circumstances of this case.

I shall take the two Issues, together.

Appellant?s Counsel had argued, strenuously, that Appellant and the 2nd Respondent are two distinct legal entities, with separate corporate personalities, rights, duties, obligations and liabilities; that while the first is a statutory corporation, the second is a company incorporated by the Companies and Allied Matters Act (CAMA). He however, conceded that the 2nd Respondent, Federal Mortgage Finance Bank Ltd, was a creation of the Federal Mortgage

Bank of Nigeria (FMBN) Act, 2004, to carry on with all of such Mortgage businesses and functions as assigned to it under Section 23 of the FMBN Act, 2004! In paragraphs 7.1.6 and 7.1.7 of the Appellant?s Brief, Appellant said:

7.1.6: It is submitted that since the 2nd Respondent, Federal Mortgage Finance Limited, is a company incorporated under the Companies and Allied Matters Act, pursuant to the provisions of the FMBN Act (supra), which said Act expressly created the Appellant, Federal Mortgage Bank of Nigeria, it may therefore be seemingly argued and easily misconstrued that the 2nd Respondent is a subsidiary of the Appellant, with interwoven corporate/legal personality for which either may sue or be sued, interchangeably for the other.

7.1.7: We submit on the contrary that even though the 2nd Respondent may be a subsidiary of the Appellant that does not defeat the separate legal existence and status of the two entities.

The facts of this case at the lower Court, shows that the 1st Respondent, as Plaintiff in Suit No. HOW/562/2001, had sought:

(1) A declaration that the Plaintiff having paid the sum of N640,475.76? as at September 2000, has paid off the principal sum of N65,000 and also Accrued interest of N575,475.76? and therefore is not indebted to the defendant as they are demanding or at all.

(2) An order of Court compelling the defendant, their agents and/or privies to render proper accounts of all the plaintiff?s payments herein and return the excess payments to the Plaintiff along with his title documents while also discharging the collateral for the said loan transaction.

(3) And order of Court setting aside all excessive interest charges not originally agreed upon between the parties at the execution of the contract which includes any interest rate above 7% originally agreed upon at the beginning of the transaction.

(4) An order of perpetual injunction restraining the defendants, their agents, privies and/or assigns from molesting, harassing, disturbing, intimidating, threatening and/or attempting to foreclose, auction or sell the Plaintiff?s mortgaged house at No. 12 Umuechem Road, Ariaria Aba in the present Abia State of Nigria. (Pages 34 ? 35 of the Records of Appeal)

At the hearing of the case, evidence showed that the loan agreement, signed by the parties and the notices sent to him (the plaintiff) by the Defendant (2nd Respondent) were actually Appellant?s documents, namely the offer letters ? Exhibits A1 & A2, some correspondence ? Exhibits A3, A4 and A5 ? all carried the name and logo of the Appellant, Federal Mortgage Bank of Nigeria. See pages 4 ? 5 of the Supplementary Records of Appeal.

The judgment for the Plaintiff (1st Respondent herein) was founded on those documents of loan transaction. Thus, when Appellant brought application, to set aside the attachment/execution levied on its properties, the same trial Court which heard the case and entered judgment held, as earlier reproduced in this judgment:

allegedly exhibited with it. In any case, the said Exhibits are either exhibited and are available to the Court as the Writ of Summons and Judgment was delivered in the Suit on 21st May, 2007, while the attachment subject of the application was effected on 27th July, 2007? There are the averments contained at paragraphs 6(a) ? 6(g) of the respondents Counter affidavit, which were also evident in Exhibit A of the Applicant? In my view, the above averments were not traversed or effectively traversed.

In my view, the difference between the judgment Debtor and the applicant was merely in name and not in substance or responsibilities to customers. Based on the above as well as the following:

(a) The entire statement of defence adopted the transaction of the Plaintiff/Respondent and the applicant as between it and the Plaintiff/Respondent.

(b) The defendant Judgment/Debtor did not raise the issue of its legal status vis-vis the applicant. It merely abandoned the proceedings after a period.

?(c) The applicant slept over his alleged right for well over 1 (one) year and Judgment and Attachment of its property complained of.

(d) The Respondent?s averment that the items had been sold was not traversed.

In such a situation that the documents which founded the contract between the 1st Respondent and the 2nd Respondent were actually issued by the Appellant, and had been adopted by the 2nd Respondent, giving the 1st Respondent (as Plaintiff) reason to believe the express or tacit involvement of the Appellant as party in the entire loan transaction, that both Appellant and the 2nd Respondent were in league, representing a common interest in the said loan transaction, it was therefore futile and I also think, dishonest and ill-advised, for Appellant to struggle to seek cover in the doctrine of distinct or separate legal entities/personalities between Appellant and the 2nd Respondent, at the point of execution of the judgment of the trial Court, when it was obvious, 2nd Respondent rode on the back of the Appellant to present

the loan transaction to the 1st Respondent, and that Appellant profited from the deal!

Of course, Appellant?s Counsel has also admitted in the Brief of Argument, that the 2nd Respondent could be seen as a subsidiary of the Appellant; that the 2nd Respondent was created, pursuant to Section 23 of the Federal Mortgage Bank of Nigeria Act, 2004, and incorporated under the Companies and Allied Matters Act (CAMA) ?to carry on with all such Mortgage business and functions as assigned to it under the Federal Mortgage Bank of Nigeria Act 2004; ?That it may be submitted that since the 2nd Respondent, Federal Mortgage Finance Limited, is a company incorporated under the Companies and Allied Matters Act, pursuant to the provisions of the FMBN Act (supra), which said Act expressly created the Appellant, Federal Mortgage Bank of Nigeria, it may therefore be seemingly argued and easily misconstrued that the 2nd Respondent is a subsidiary of the Appellant with interwoven corporate/legal personality for which either may sue or be sued interchangeably for the other.?

I think the above was a sound legal argument by the Appellant?s Counsel, except for the allegation that it could be ?misconstrued.? That, I think, would be a proper construction in the circumstances of this case, as Appellant presented itself as working with the 2nd Respondent. I do not think the case cited and relied upon by Appellant, to establish that Appellant and 2nd Respondent were distinct, separate legal entities, would be applicable to this case, where the interest of the Appellant and 2nd Respondent were fused, and they were seen to act in consort. In that situation, Appellant was, in my view, very well, a party, to the Suit and conveniently fell within the catch phrase of ?Privies? and/or ?assigns? stated in the substantial judgment of 21/5/2007.

Explaining who a privy is in a suit, my learned brother, George Will JCA, said in the case of Agbalajobi & Anor Vs Gov. Lagos State (2017) LPELR ? 41955 (CA):

the word ?privy? has been defined so succinctly as ?A person who is in privity with another. One who is a partaker or has any part or interest in any action or matter or thing. In connection with the doctrine of

Res-Judicata, one who, after the commencement of the action has acquired interest in the subject matter affected by the judgment through or under one of the parties as by inheritance, succession, purchase or assignment.? See Black?s Law Dictionary 6th Edition at page 1200. See also Daniel Vs Kadiri (supra); Chief Oyelakin Balogun Vs Pastor Moses Afolayan (2005) ALL FWLR (Pt. 85) 331 at 334; Kola Adedeji & Anor Vs Olunba Segun Adebayo & Ors (2012) LPELR ? 7990 (CA).?

In the Supreme Court decision, in Agbogunleri Vs Depo & Ors (2008) LPELR ? 243 SC ?Privy? was defined as ?that person whose title is derived from and who claims through a party. It may also imply identity of successive interest or person having interest in the property.?

Of course, from the facts of the case and the Exhibits produced at the trial Court, it was obvious that Appellant was a co-beneficiary and partaker with the 2nd Respondent in the loan transaction with the 1st Respondent, and so, a privy to the Suit. In the case of Nwazota Vs Nwokeke (2010) LPELR ? 5101 CA, my Lord, Ogunwumiju JCA held:

?According to Black?s Law Dictionary a ?Privy? in a Suit or in the con of litigation means ? someone who controls a law Suit, though not a party in it, someone whose interests are represented by a party in the law Suit and a successor in interest to anyone having derivative claim.? A person also qualifies as a privy when he is ?a guarantor and guarantee? or ?lessor and lessee? which can also extend to the term ?Donor and Donee? of a legal interest in land.?

In paragraphs 2, 3, 4 and 5 of the Amended Statement of Defence of the 2nd Respondent (as Defendant in the Suit) it had admitted and adopted the loan documents relating to the transaction between Plaintiff and Defendant in the Suit and those documents came from and bore the imprimatur of the Appellant. I think the trial Court was right to attach the property of the Appellant, in the circumstances.

Was the trial Court right in refusing or failing to consider the further affidavit of the Appellant, in the application to set aside the attachment/execution of the judgment levied on the property of the Appellant, in the circumstances of this case?

Counsel had argued strongly, that the trial Court was wrong to refuse to set aside the attachment/execution of the judgment levied on the property of the Appellant, and in doing so, failed to consider the further affidavit of Appellant, meant to rebut or deny some averments made by the 1st Respondent in the Counter affidavit, dated 19/9/2007. The trial Court had held that it did not find the further affidavit of the applicant or the Exhibits allegedly exhibited to it. It held that the averments contained in paragraphs 6(a) ? 6(g) of the Respondent?s Counter affidavit were not denied, which showed, as per the Exhibit A, that the entire facts of the action and transaction that constituted the cause of action involved the Applicant, (Appellant) who also participated; the Court also held that the statement of claim reflected the Applicant as the actual defendant.

Appellant had referred us to the said further affidavit in the original Records of Appeal, transmitted to this Court ? pages 57 to 60 thereof. It was deposed to on 2/10/2008. It is difficult to understand why the learned trial Court said it did not see the Further

Affidavit of Appellant, nor the exhibits attached, thereto, whereas the records of Appeal carried the said processes, and Appellant had also referred to the same (Further Affidavit) in its address filed on 28/4/2009, which the trial Court claimed to have considered. See pages 50 to 55 and 94 of the Records of Appeal.

On page 52 of the Records (paragraph 4.2.1 of the Address of Applicant in support of the motion) Appellant said:

“From paragraphs 7 to 10 of the Affidavit in support of motion, dated 8/5/2008, and paragraphs 4 to 8 of the Further Affidavit in support of the motion dated 2/10/2008, the Applicant averred it was not a party to the proceedings and that it was a separate and distinct legal entity from the Federal Mortgage Finance Limited, the Defendant/Respondent, while the Plaintiff/Judgment Creator/Respondent averred in paragraphs 6(a) ? 6(g) that the Applicant is involved in the transaction that constitute the cause of action and that Applicant participated in same?”

I think it was wrong for the trial Court to say that it did not see the Further Affidavit of the Appellant and the exhibits attached, thereto.

I think what the Court should have considered was, whether the said further affidavit and the exhibit attached, had effectively countered or denied the averment of the Respondent, that Appellant herein was involved in the transaction that constituted the cause of action, and had participated in the case, which I have already answered.

The 1st Respondent, in his address at the Lower Court, had argued:

the application amounts to approbating and reprobating at the same time, which is not allowed in law. All the exhibits to the loan transaction reflect that indeed the loan transaction was granted by the Federal Mortgage Bank, the applicant. They cannot deny the documents they made. Again, as shown in Exhibits A1, A2, A3, A4 and A5 to the Respondent?s Counter affidavit? the entire transaction was between the applicant in this application, Federal Mortgage Bank of Nigeria and the Respondent.? (See page 84 of the Records)

Appellant was not therefore, able to disentangle itself from the Suit, having, actively, brought it about, in privy with 2nd Respondent.

I have already held that the trial Court was right to refuse to set aside the attachment/execution of the judgment levied against the property of the Appellant. Thus, the error/mistake of the trial Court relating to the Further Affidavit, not withstanding, Appellant was still a party to the Suit, as its processes (loan agreement etc) brought about the Suit. Appellant was, therefore, privy to the action and worked in league with the 2nd Respondent in the loan transaction and, obviously, profited from it. The decision in the case of Babatola Vs Aladejana (2001) 12 NWLR (Pt. 728) 297 would not therefore be applicable to this case. That case holds that:

the Court cannot give a judgment or make an order against a person who will be affected by its decision, if such a person is not made a party or, has no opportunity of defending the Suit. The Court has no jurisdiction to decide the fate of a person, or a matter concerning him when such person is not made a party to the action.?

?That is a good law, but does not apply where the Appellant complaining, was actively involved in the action, and lent its processes to be used, operating through and by the Defendant to sustain the action, which it also

benefited from, which led to the Suit. In the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR ? 42738 SC, while holding that an order of Court cannot be made against a person who is not before the Court or a party to the Suit, the Court said that such principle only applies, to vitiate and order of Court made to operate against a party not joined as a party to Suit and who is not privy to an action. Appellant was a privy to this action and worked together with 2nd Respondent to defend the Suit, having briefed A.O. Agbo Esq., who settled their Statement of Defence and Counter-claim, in the action.

I resolve the Issues against Appellant and dismiss the Appeal for lacking in merit. Appellant shall pay cost of (N40,000.00) to the 1st Respondent.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother ITA GEORGE MBABA JCA.

I agree with his reasoning and conclusion.

I dismiss the Appeal as lacking in merit.

I abide by the consequential order made as to costs

?IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, JCA. I completely agree with his reasoning and conclusions. I have nothing more to add. I adopt his orders as mine.

Appearances:

Kelechi Nwaiwu, Esq with him, T. Lorhaa, Esq.For Appellant(s)

UnrepresentedFor Respondent(s)

Appearances

Kelechi Nwaiwu, Esq with him, T. Lorhaa, Esq.For Appellant

AND

UnrepresentedFor Respondent