THE VESSEL MT SYLIA & ANOR v. UT BANK (GHANA) LIMITED & ANOR
(2019)LCN/13064(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2019
CA/L/879/2016(R)
RATIO
APPLICATION FOR SUBSTITUTION OF A PERSON IN LITIGATION: NATURE
An application for substitution of a person in litigation is generally an innocuous one granted as a matter of routine, and this is so because parties should have free hand to change persons in the litigation process. An application for substitution is also different in a material way to an application for joinder. Substitution is simply to put a person in place of another or to take the place of another, joinder of parties on the other hand is to join together two or more persons together as Plaintiffs or Co-defendents See: Shenshui Construction Co. (Nig) Ltd & Anor V Intercontinental Bank Plc & Ors (2015) LPELR 40893 (CA); Okon V Aji (2017) LPELR 43464 (CA).PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. THE VESSEL MT SYLIA
2. GLOBAL ENERGY S.A Appellant(s)
AND
1. UT BANK (GHANA) LIMITED
2. UT. FINANCIAL SERVICES LIMITED Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Lead Ruling): By a Motion on Notice filed on 29 ? 9 2017 learned counsel for the Appellants/Applicants seeks the following reliefs:-
1. AN ORDER substituting the 1st Respondent with Ghana Commercial Bank Limited of GCB Bank Building, Thorpe Road, High Street Accra and Messrs. Vish Ashiagbor and Mr. Eric Nana Nipah, receiver managers of UT Bank Ghana Ltd of PricewaterHouseCoopers of No. 12 Airport City, 3rd Floor, UNA House, Cantonments, Accra, Ghana as the 1st and 2nd Respondents in the appeal.
2. AN ORDER for the leave for substituted services out of the jurisdiction of this Honourable Court on the 1st and 2nd Respondents by Fedex Courier Service of the Court process on:
(i) Ghana Commercial Bank Limited,
GCB Bank Building
Thorpe Road, High Street,
Accra, Ghana.
(ii) Messrs. Vish Ashiagbor and Mr. Eric Nana Nipah,
Reciever Managers of UT Bank Ghana Ltd,
PricewaterHouseCoopers,
No. 12 Airport City, 3rd Floor,
UNA House, Cantonment,
Accra, Ghana.
3. AN ORDER deeming Ghana Commercial Bank Limited and Messrs Vish
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Ashiagbor and Eric Nana, receiver managers of UT Bank Ghana Ltd of price water House Coopers No. 12 Airport City, 3rd Floor, UNA House, Cantonments, Accra, Ghana as the 1st and 2nd Respondents in this Appeal and all Court processes filed as properly filed and served on them before this Honourable Court by Fedex Courier Service.
4. AN ORDER deeming UT, Financial Services Limited as the 3rd Respondent.
The grounds upon which the application is predicated is stated thus:-
(i) That the Bank of Ghana on the 14th of August, 2017 approved the purchase of UT, Bank Ghana Ltd, the 1st Respondent to Ghana Commercial Bank Ltd and revoked the Banking license of UT, Bank Ghana Ltd.
(ii) That the Central Bank of Ghana on the 14th of August, 2017 appointed Messrs. Vish Ashiagbor and Eric Nana Nipah of Price water House Coopers as receiver managers of UT Bank Ghana Ltd assets.
(iii) That the 1st Respondent is no longer a legal personality as they have been taken over by Ghana Commercial Bank Limited and receiver managers have been appointed over their assets by the Bank of Ghana.
(iv) That this application is necessary in order to bring the proper
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and legal parties before this Honourable Court.
The application is supported by a six paragraph affidavit deposed to by Jolayemi Ajadi Legal Practitioner of PC43 Churchgate Street, Victoria Island Lagos.
In the Written Address filed on 2nd October 2018 in support of the application, a sole issue was distilled for determination thus:-
Whether by the parties sought to be joined having taken over the 1st Respondent and the assets and liabilities of the 1st Respondent, from the 14th of August, 2017, the said parties sought to be joined are not necessary and interested parties to be joined in the action?
Arguing the issue learned counsel for the applicants submitted that the parties sought to be joined have admitted that the Banking License of the 1st Respondent has been revoked by the Bank of Ghana and that the parties sought to be joined are now the successor company to the 1st Respondent as they have inherited the assets and liabilities of the 1st Respondent. On when a company, becomes a successor to another company and the implications of change of name of a company the Appellants/Applicants referred to the Supreme Court decision in Re:
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Amolegbe (2014) 8 NWLR Part (1408).
Learned counsel for the Appellants/Applicants argued further that the parties sought to be joined being the successor to the 1st Respondent are necessary and interested parties to be joined in this action.
Learned counsel cited the following decisions :-Olawoye vs Jimoh 2013 13 NWLR (Pt 1371) page 367 & 370; L.S.B.P.C Vs Purification Tech (Nig) Ltd (2013) 7 NWLR (Pt 1352) B.91;. Akpamgbo Okadigbu Vs Chidi NU 1 (2015) 10 NWLR (Pt 1466) at page 184 -185.
Learned counsel urge us to grant the reliefs sought in the application. Responding to the application one of the parties sought to be substituted Ghana Commercial Bank Ltd filed a Counter Affidavit on 5th December 2017. The five paragraph Counter affidavit is deposed by Michael Dedon of No 4 Lalupon Close off Keffi Street Ikoyi Lagos.
In the Written Address filed on 15th October 2018 opposing the application learned counsel for Ghana Commercial Bank Ltd one of the parties sought to be substituted distilled a lone issue for determination:-
(a) Whether Ghana Commercial Bank Limited is a proper and necessary party to these proceedings necessitating
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its joinder to this suit in place of the 1st and 2nd Respondents?
Learned counsel for Ghana Commercial Bank Ltd one of the parties sought to be substituted argued that contrary to the Applicants submission the party sought to be substituted never admitted that the Banking License of the 1st Respondent has been revoked by the Bank of Ghana and that the party sought to be substituted is now the successor Company to the 1st Respondent thereby inheriting the assets and liabilities of the 1st Respondent.
It is further contended by learned counsel that until the purchase and acquisition of the 1st Respondent by the Ghana Commercial Bank Limited is complete the party sought to be substituted cannot be said to have assumed the liability of the 1st Respondent. It is further argued that legal rights do not arise from a mere indication to purchase or acquire but upon complete and actual purchase and acquisition.
Learned counsel further submitted that the law is trite that it is only the Receiver/Manager who can bring an action or be sued in respect of the assets of the company under receiver ship, and where it wishes to sue or defend an action it must
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obtain the consent of the Receiver/Manager. Learned counsel citedU.B.A Trustees Ltd Vs. Nigergrob Ceramics Ltd (1987) 3 NWLR (Pt 62) 600; Dagazau V Borkir International Co. Ltd 1999 7 NWLR (Pt 610) 293.
It is contended by learned counsel that Ghana Commercial Bank Ltd is not a necessary party to this appeal since it is not one of the Receiver/or Managers of the 1st Respondent, and further that the proper and necessary parties are the joint receivers in the persons of Messrs Visa Ashiagbor and Mr. Eric Nipah.
Learned counsel cited Brifina vs Intercontinental Bank Ltd 2003 5 NWLR (Pt 814) 577 paras F-H; Green v Green (1987) 7 SCNJ 269; Peenok Investment Ltd V Hotel Presidential Ltd (1982) 12 SC (Reprint) 1 at 11.
Learned counsel urge us to refuse the application seeking for the substitution of the 1st and 2nd Respondents with Ghana Commercial Bank Ltd. In the reply on points of law filed on 19-10-2018, learned counsel for the Appellants/Applicants argued that Ghana Commercial Bank Ltd having admitted in the Counter Affidavit to have duly taken over the 1st Respondent, it behooves upon them to place before this Court the purchase and assumption
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agreement to show that they did not inherit the assets and liabilities of the 1st Respondent. It is further argued by learned counsel for the applicants that it is not in all cases that a receiver must be a party to actions against a company.
Learned counsel cited Adetona Vs Edet (2004) 16 NWLR Pt 899 at P. 848. Learned counsel finally urge us to grant the application.
RESOLUTION
An application for substitution of a person in litigation is generally an innocuous one granted as a matter of routine, and this is so because parties should have free hand to change persons in the litigation process. An application for substitution is also different in a material way to an application for joinder. Substitution is simply to put a person in place of another or to take the place of another, joinder of parties on the other hand is to join together two or more persons together as Plaintiffs or Co-defendents See: Shenshui Construction Co. (Nig) Ltd & Anor V Intercontinental Bank Plc & Ors (2015) LPELR 40893 (CA); Okon V Aji (2017) LPELR 43464 (CA).
I have considered the affidavits filed by the parties for and against the application, together
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with the Written Addresses of counsel on the issues raised. The opposition of the party sought to be substituted i.e Ghana Commercial Bank Ltd as argued by its counsel in the Written Address is that Ghana Commercial Bank Ltd by the purchase and assumption agreement approved by the Bank of Ghana did not assume any of the liabilities of the 1st Respondent and that the said agreement is yet to be executed, so rights and liabilities have not yet arisen pursuant to which the Appellants can rightly proceed against the party sought to be substituted.
The case of the Appellants/Applicants is that with the revocation of the Banking License of the 1st Respondent by the Bank of Ghana and the approval of the purchase of same by Ghana Commercial Bank Ltd, the said Ghana Commercial Bank Ltd is the proper and necessary party to the appeal. It is also the case of the Appellants/Applicants that the said Ghana Commercial Bank Ltd has admitted the purchase of the 1st Respondent in the Counter Affidavit. As I mentioned earlier I have looked at the affidavits filed by the parties before us and paragraph 3 of the Counter Affidavit is in my view relevant to the determination of
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the application and it is reproduced thus:
I have been informed by Ms. Countess Lantey and Ms. Jessie Jacintho both of the Head Office Legal Services Department of Ghana Commercial Bank Limited vide emails and telephone conversations that took place between 9th November 4th December 2017 and I verily believe them that:
(i) The Bank of Ghana on 14th August 2017 revoked the banking license of UT Bank and appointed Messrs. Vish Ashiagbor and Eric Nipah as joint receivers of UT Bank.
(ii) The Bank of Ghana also approved a Purchase and Assumption Agreement? for Ghana Commercial Bank Limited to take-over all the deposits and purchase some selected assets of UT Bank.
(iii) Ghana Commercial Bank Limited did not however acquire any of the liabilities of UT Bank as they do not form part of the ?Purchase and Assumption Agreement? Matters relating to the liabilities of UT Bank fall in the domain of the joint receivers appointed by the Bank of Ghana to eventually wound down the affairs of UT Bank.
(iv) Besides, the ?Purchase and Assumption Agreement? is yet to be executed so rights and liabilities have not yet
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accrued and cannot be enforced yet.
Now a simple reading of the paragraph reveal clearly that contrary to the submission of learned counsel for Ghana Commercial Bank Ltd that the banking license of 1st Respondent was not revoked and that the party sought to be joined is not the successor of the 1st Respondent, the Affidavit evidence as shown in paragraph 3 of the Counter Affidavit shows the contrary.
From the averment in paragraph 3 of the Counter Affidavit it appears to me that the central grouse of the party sought to be substituted with the application is on the point which raises the issue of the assumption of liabilities of the 1st Respondent which the party sought to be substituted said do not form part of the purchase and assumption agreement. The Purchase and Assumption Agreement is however not before us.
In any event for this Court to involve itself with the contentious issue of the liabilities or otherwise of the party sought to be substituted at this stage would in my view be determining at this interlocutory stage issues that should be left to the hearing of the appeal.
I am satisfied from the affidavit evidence
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before me that the application has merit and same is granted as prayed.
It is ordered thus:-
(1) An Order substituting the 1st Respondent with Ghana Commercial Bank Limited of GCB Bank Building, Thorpe Road, High Street,
(2) An Order for substituted services out of the jurisdiction of this Honourable Court on the 1st and 2nd Respondents by Fedex Counter Service of the Court process on:
(i) Ghana commercial Bank Limited,
GCB Bank Building
Thorpe Road, High Street
Accra, Ghana
(ii) Messrs. Vish Ashiogbor and Mr. Eric Nana Nipah Reciever Managers of UT Bank
Ghana Ltd, Pricewater House Coopers,
No. 12 Airport City, 3rd Floor,
UNA House, Cantonments Accra, Ghana
(3) An Order deeming Ghana Commercial Bank Limited and Messrs Vish Ashiagbor and Eric Nana Nipah, receiver managers of UT Bank Ghana Ltd of Price water House Coopers No. 12 Airport City, 3rd Floor, UNA House, Cantonments, Accra, Ghana as the 1st and 2nd Respondents in this appeal and all Court processes filed as properly filed and served on them before this Honourable Court by Fedex Courier Service,
(4) An Order deeming UT, Financial
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Services Limited as the 3rd Respondent.
Parties to bear their respective costs.
TOM SHAIBU YAKUBU, J.C.A.: His Lordship, JAMILU YAMMAMA TUKUR, JCA., obliged me with the draft of the ruling rendered by him, on this application. I am in agreement with the reasons proffered therein, to the effect that the application has merits. Hence, I grant it too.
I adopt the consequential orders and inclusive of the order of costs, contained in the lead ruling, as mine.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JAMILU YAMMAMA TUKUR, JCA obliged me with the leading judgment just delivered.
I agree with his reasoning and conclusion that the appeal has merit and should be granted. I abide by the consequential orders made in the lead judgment.
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Appearances:
P. Amaran with him, J.O. MadukakuFor Appellant(s)
P.E. Sodje for 2nd Respondent
For Respondent(s)
Appearances
P. Amaran with him, J.O. MadukakuFor Appellant
AND
P.E. Sodje for 2nd RespondentFor Respondent
