ACCESS BANK PLC v. FEMI TOLANI
(2018)LCN/12237(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/L/503/2013
RATIO
COURT AND PROCEDURE: WHO IS A JURISTIC PERSON
“It is trite that only a juristic person known to Law or a person with capacity to sue and be sued can be a proper party in an action. Thus in the fairly recent case of Reptico S.A. Geneva v. Afribank Nigeria Plc (2013) 14 NWLR (pt. 1373) 172 at 207, the Supreme Court held per the lead judgment prepared by his lordship, Ariwoola, J.S.C., as follows: ‘Generally, the law recognises two categories of person who can be sue and be sued in Court. They are natural persons, with life, mind, brain and physical body and other artificial persons or institutions having juristic personality. See, Attorney-General of Federation v. All Nigeria Peoples Party & Ors (2003) 12 SCM 1 at 12; (2003) 18 NWLR (Pt. 851) 182; (2003) 12 SC (Pt. 11) 146…'” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
TRUST: WHAT IS A TRUST DEED
“The trust deed is therefore a product of legislation. It is not a matter for CAMA. The fact that the respondent relied on the provisions of CAMA, not TIA, would not affect the matter as proceeding under a wrong law when there is a remedy under a particular enactment would not affect the fortunes of the matter vide Falobi v. Falobi (supra) cited by the respondent.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC – Appellant(s)
AND
FEMI TOLANI – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Lagos State (the Court below), by which it granted the respondents application seeking to join “The Trustees of Access Bank Plc Staff Investment Trust Scheme” as co-defendants in the action.
In summary, the respondent commenced the action at the Court below by a writ of summons claiming some declaratory and pecuniary reliefs against the appellant alleging that upon being employed by the appellant on 31.07.07 he was offered 2,500,000 units of trust shares in the appellants staff investment trust deed (the Staff Investment Trust Deed) which were to be redeemed at a particular net asset value in the course of time. The respondent alleged that upon resignation from the employment of the appellant, the latter breached the terms thereof by redeeming the shares below the net asset value.
The appellant traversed the action in a statement of defence averring therein that it had no relationship with the respondent under the terms of the trust scheme; and that it is the trustees of the scheme that had such relationship with the respondent. The respondent then brought an application on notice to join the “Trustees of Access Bank Plc Staff Investment Trust Scheme” as the 2nd defendant in the action. The appellant opposed the application on the ground that the Trust Scheme is not a juristic person to which the respondent rejoined by replying on the provisions of the Trustee Investment Act (TIA) as conferring legal personality on the Trustees of Access Bank Plc Staff Investment Trust Scheme to sue and be sued. The Court below overruled the objection and joined the Access Bank Plc Staff Investment Trust Scheme as co-defendant in the action contrary to the prayer of the respondent for an order to join the “Trustees of Access Bank Plc Staff Investment Trust Scheme” as co-defendant.
Aggrieved with the decision the appellant filed a notice of appeal with four (4) grounds of appeal from which three (3) issues were distilled for ground 1, 2, 3 and 4, respectively, in a brief of argument filed on 14.07.17, but deemed as duly filed on 17.01.18. The appellant argued that since the trustees of Access Bank Plc Investment Trust Scheme was not incorporated, it is not a juristic person and no useful purpose would be served to join it in the action as co-defendant as no order of the Court below can be made against a non-juristic person as Courts do not issue orders in vain citing in support the cases of The Executors of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff and Ors. (2009) 2, 3 SC (pt.1) 93, Agbonmagbe Bank Ltd. v. General Manager, GB Ollivant Ltd. (1961) All N.L.R. 16, ACB Plc v. Emostrade (2002) 8 NWLR (pt.770) 501 at 515, Shittu v. Ligali (1941) 16 NLR 23, Onyekwulunne v. Ndulue (1997) 7 NWLR (pt.512) 250 at 270, 271, Ajibola v. P.S.T.C. Ekiti State (2007) All FWLR (pt.350) 1341 at 1355, Zain Nigeria Ltd. v. Ilorin (2013) All FWLR (pt.681) 1518 at 1569, Fawehinmi v. N.B.A. (1989) 2 NWLR (pt.105) 558, U.B.A. Plc v. Jargaba (2007) 11 NWLR (pt.1045) 247 at 267, Nigerian National Supply Co. Ltd. v. Sabana & Co. Ltd. and Ors. (1988) 2 NWLR (pt.74) 23 read with Sections 159(3), 590(1)(2) and 596(1) of the Companies and Allied Matters Act (CAMA), Cap C28, LFN, 2004; and that the fact that the appellant did not deny the affidavit of the respondent that the party sought to be joined is a necessary party is not enough to sustain the application, especially in light of the fact that the respondent did not deny the averment in paragraph 5 of the appellants affidavit that the party sought to be joined is not a legal personality capable of suing and be sued citing in support the cases of Bello v. A-G., Lagos State (2007) 2 NWLR (pt.1017) 115, First Bank of Nigeria Plc and Ors. v. A.-G., Federation and Ors. (2013) LPELR 20152 (CA).
It was argued that by the clear language of the Trustee Investment Act (TIA), the party sought to be joined cannot be a juristic person in that TIA is a legislation to facilitate the investment of trust and other funds in Nigeria in locally-issued securities and does not in any way or manner relate to the conferment of legal personality upon any person or group of persons who purport or are trustees of any trust investment scheme citing in support the cases of Fasel Services Limited and Anor. v. Nigeria Ports Authority and Anor. (2009) 9 NWLR (pt.1146) 400, Ojokolobo v. Alamu (1987) NWLR (pt.61) 377 read with Sections 159(3)(b), 590(1) and (2), 596(1) of CAMA as well as the case of Egbuson v. Ikechukwu (1977) 6 S.C. 1.
It was argued that granting the affidavit evidence of the respondent was unchallenged the party sought to be joined not being a juristic person did not avail the respondent citing in support the cases of I.C.H. Ltd. v. C.S. & R. Ltd. (2008) All FWLR (pt.400) 680 at 705, Bello v. A.-G., Lagos State (2007) 2 NWLR (pt.1017) 115, R.E.A.N. v. Aswani Textile Ltd. (1992) 3 NWLR (pt.227) 1 at 13, First Bank of Nigeria Plc and Ors. v. A.-G., Federation and Ors. (2013) LPELR 20152 (CA); upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the respondents application at the Court below be dismissed.
The respondents brief filed on 04.12.17, but deemed as properly filed on 17.10.18, contended that by paragraphs 15, 16 and 17 of the statement of defence contained in pages 178, 180 of the record of appeal (the record) and the witness statement on oath (deposition) of the appellant in paragraphs 10, 18, 19, 20 and 21 in pages 258, 262 of the record the trustees of Access Bank Investment Trust Scheme owns 113,528,466 shares in the appellants bank which shares are registered in the name of the trustees and acting pursuant to the functions imposed on it by Section 2(1), 3(1) and (2) of TIA and the trust deed in pages 23, 30 of the record, the trustees sold a total of 2,500,000 shares to the respondent showing the trustees exercised powers and functions affecting the third parties like the respondent and that it would amount to injustice if such third parties cannot seek redress for any wrong done them by the trustees therefore the trustees are a legal personality that can sue and be sued citing in support the cases ofCarlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (pt.323) 631 at 636 657, Kpebimoh v. The Board of Governors, Western Ijaw Teachers Training College (1966) NMLR 131, Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (pt.927) 429.
It was argued that the scheme was set up pursuant to an Act of the Legislature and empowered to carry out functions which affect the interest of third parties, the beneficiaries of the scheme, therefore the fact that the Court below relied on a wrong enactment does not vitiate its decision citing in support the cases of Falobi v. Falobi (1976) 10 NSCC 576 at 581, State v. Gwonto and Ors. (1985) 1 SCNLR 142 at 160, Bello and Ors. v. A.-G., Oyo State (1986) 2 NSCC 1257.
It was finally argued that in the event judgment is given in the case it could be enforced against both the appellant and the trustees of Access Bank Plc Staff Investment Trust Scheme appointed by the appellant as an intermediary between the appellant and the beneficiaries of the scheme which was asserted in the affidavit evidence of the respondent without any challenge from the appellant thus establishing the assertion on the quality of evidence citing in support the cases of Adelumola v. The State (1988) 1 NSCC 465 AT 472, Udengwu v. Uzuegbu (2003) 13 NWLR (pt.836) 136 at 152; upon which the respondent advocated for the dismissal of the appeal.
The reply brief filed on 07.02.18, but deemed as properly filed on 17.10.18, re-emphasised that the Access Bank Plc Staff Investment Trust Scheme and/or the trustees of Access Bank Plc Staff Investment Trust Scheme is devoid of the capability of suing and being sued citing in support the case of Musa v. Edidiamhen (1994) 3 NWLR (pt.334) 544 at 555; that Carlen (supra) is distinguishable from the present case in that in that case the offices were created and assigned functions by Sections 2 and 7 of the University of Jos Act, unlike the present case, so the case is irrelevant and should not have been referred to by the respondent citing in support the case of Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (pt.109) 250 at 275 admonishing parties from relying on irrelevant cases; upon which the appellant concluded by urging for the appeal to be allowed and the ruling of the Court below set aside.
For clarity, I copy the motion for joinder in page 339 of the record as follows
“1) AN ORDER granting leave to the applicant to join The Trustees of Access Bank Plc Staff Investment Trust Scheme as second defendant in this suit.
2) For such other order or orders as this Honourable Court may deem fit to make in the circumstances.
GROUND OF APPLICATION
The party sought to be joined was actually the trustees appointed by the 1st defendant to manage the scheme where the claimant invested his money and who did fail to manage the investment according to agreement between the parties. Hence, their presence in this suit is indispendable.”
Pages 341, 342 thereof contain the relevant portion of the affidavit supporting the motion thus –
“(4) That in the course of reviewing the case (Femi Tolani vs. Access Bank Plc) in respect of which this application is being brought, my principal, Mr. Adetunbi, Esq., informed me in our Ibadan office on 5th, April 2012 as follows:
(i) That it will be necessary to join the Trustees of the 1st defendants Staff Investment Trust Scheme as a necessary party to this suit.
(ii) That the said Trustees actively participated in the transactions leading to the institution of this suit.
(iii) That the named trustees actually managed he claimants investment in the scheme on behalf of the 1st defendant and their presence is indispensable to the determination of the issues in the suit.
(iv) That their joinder is necessary for the effective resolution of the issues is this suit.
(v) That the issues in dispute in this suit cannot be effectively and completely determined without joining the party sought to be joined.
(5) That I verily believe that the 1st defendant will not be prejudiced in any way by the grant of this application and that it is in the interest of justice that this application be granted.
(6) That I depose to this affidavit solemnly and consciously believing the contents thereof to be true to the best of my knowledge and in accordance with the Oaths Law.”
The application was thus to join the named trustees of the trust scheme mentioned in the trust deed as co-defendant as they are natural persons who can sue and be sued. The trust deed is contained in pages 23, 30 of the record as follows-
“ACCESS BANK NIGERIA PLC STAFF INVESTMENT TRUST DEED
BETWEEN
ACCESS BANK NIGERIA PLC
AND
TRUSTEES TO THE SCHEME
PREPARED BY’:
The Solicitor
Access Bank Nigeria Plc
Plot 1665, Oyin Jolayemi Street
Victoria Island
Lagos.
THIS TRUST DEED made the ————- day of ———— 2002 between, ACCESS BANK NIGERIA PLC whose registered office is at Plot 1665, Oyin Jolayemi Street, Victoria Island, Lagos, Nigeria (hereinafter called “Company”) of the one part and the persons whose names and addresses are set out in the first schedule (hereinafter called the Trustees”) of the second part.
W H E R E A S:
The Company is desirous of establishing a revised scheme for the benefit of its employees for the purpose of subscribing to ordinary shares of the company.
The Company has resolved to create and constitute a trust for the control and administration of the scheme.
The management, superintendence, funding, present and future allocation of shares, dividend distribution, lien on shares shall be governed by the rules as laid down in the second schedule hereto.
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. In this deed the following terms shall have the following meanings (except where the context otherwise provides),
a. “The Trustees” means the trustees named in the first schedule hereto. In the case of an individual it means that, individual or his or her representative appointed to act as trustee by the Directors of Company or the class or people represented by the individual as is provided for in the schedule hereto and includes their successors-in-office where the context so admits.
b. “Employees” means persons who arc for the time being employed by the Company including Directors holding salaries employment or offices in tile Company,
c. “Qualified Employee” means, means an employee who holds the position of a senior manager or any grade above it or has been in the employment of the Bank 1’01’ not less than five years.
d. “Beneficiary” means all employees who are participating under the scheme for whose benefit the Trustees hold the Trust Shares,
e. “The Scheme” means Access Bank Nigeria Plc Investment Trust Scheme.
f. “Rules” means the rules governing the Scheme or the Apportionment rules.
g. “Trust Shares” means the Ordinary shares in the capital of the company allotted to the Trustees for and on behalf of the employees under the Scheme.
h. “The Board” means the Board of Directors of the company.
i. “Management” means the Executive Directors of the Company.
j. “Non-Managerial Staff” means any staff or employee or worker below the rank of senior manager.
k. “Management Staff” means any staff or employee or worker above the rank of manager.
l. “Trust Period” means the date from which the deed becomes effective until the date it shall be lawfully terminated.
m. “A signatory” means any trustee who is also an “A Signatory” of Access Bank Nigeria Plc.
2. Trustee shall be any person appointed by management from the members of staff of the company. Such trustees shall act ill their personal capacity and upon resignation or dismissal of any trustee, they shall forthwith cease to be a trustee to this scheme.
3. The company shall forthwith after the execution of this Deed transfer a total of 113,528,466 ordinary shares of the Company formerly held under Stall Trust Funds A & B to the Trustees and shall also make available to the Trustees credit facilities to acquire up to 10% of the ordinary shares of the Company from the floor of the Nigerian Stock Exchange as may be required from time to time.
4. The Trustees shall repay the loan from the proceeds of the sale of shares to Qualified Employees and from other sources as may be determined by the Trustees from time to time.
5. The Trustees shall hold the trust shares upon trust for the employees of the Company and apportion any dividends received thereon as follows:
a. To pay dividends to qualified employees as per the percentage of total shares for which they have fully paid.
b. To pay interest on the loan.
c. The balance to be appropriated to employees in a manner to be determined by the Trustees.
6. The Trustees whether personally, jointly or severally shall not incur any personal liability in respect of the Trust Fund or Trust shares except in the case of gross negligence or deceit or misappropriation of Trust property or wanton or reckless dereliction of duty.
7. The Trustees shall act independently of the Company and shall use their best endeavors to protect the interest or the beneficiaries.
8. With the consent of the Trustees and Management, the Company may modify or abrogate the provisions of this Deed.
9. For the purpose of this Deed the determination of the Trustees shall be the decision of a simply majority of the Trustees present at a meeting. A Trustee who dissents from any lawful decision of the majority of the Trustees shall nevertheless concur in executing and doing all such instruments and acts as may be required for the purpose of giving effect to such decision.
10. Any decision or action out of the ordinary day to day administration of the scheme as may have been approved by Management shall be subject to the ratification of the said Committee.
11. The Bankers to the Scheme shall be Access Bank Nigeria Plc or any other Bank as determined by the Trustees from time to time subject to the approval of Management.
12. Any meeting of Qualified Employees required to he convened for the purpose of the Scheme shall be convened and held in such manner as the Trustees shall determine.
13. The Trustees shall have the power to invest any surplus funds in the Trust account as may from time to time be approved by Management.
14. All costs, charges and expenses of and incidental to the preparation, operation and determination of the Scheme (including those incidental to the purchase by the Trustees of the Trust Shares, the interest all the said loan and stamp duty payable on or in respect of this Deed or otherwise) shall be paid out of and be borne by the Trust Fund such charges, costs and expenses shall constitute a first charge on the Trust Fund.
15. For the avoidance of doubt it is hereby provided as follows:
(a) the benefits to Qualified Employees under the Scheme shall not form any part of their salaries or remuneration nor count as pay or remuneration for a pension fund or any other purpose other than for income tax purpose; and
(b) the existence of the Scheme shall not in any way affect the freedom of employees to take constitutional collective action in the event of a dispute with the Company.
FIRST SCHEDULE
The Trustees of this Scheme shall be appointed from amongst staff members from time to time by Management.
The first Board of Trustees so appointed to this Agreement shall be as following:
BOARD OF TRUSTEES
1. Mr. Herbert Wigwe
2. Mr. Tek Koroye
3. Mr. Demola Oladaiye
4. Mrs. Iyabo Soji-Okusanya
5. Mr. Kelechi Nwagbara
6. Mr. Samaila Aliyu
7. Miss. Lola Agbogun
8. Mrs. Salewa Fajobi.”
The trust deed was created pursuant to the provisions of TIA. Sections 2(1) and 3(1) and (2), thereof, in particular, state
“2(1) This Act shall apply for “debentures and fully paid-up shares of any company incorporated by and registered under the Companies and Allied Matters Act (other than a private company within the meaning of the Act).”
3(1) Without prejudice to the enabling provisions of any other law, a trustee may under the powers of this Act, invest in any of the securities specified or referred to in Section 2 of this Act.
3(2) The power conferred by Sub-section (1) of this Section shall be exercised according to the discretion of the trustee, but subject to any consent or direction required by the instrument, if any, creating the trust or by law with respect to the investment of the trust funds.”
The trust deed is therefore a product of legislation. It is not a matter for CAMA. The fact that the respondent relied on the provisions of CAMA, not TIA, would not affect the matter as proceeding under a wrong law when there is a remedy under a particular enactment would not affect the fortunes of the matter vide Falobi v. Falobi (supra) cited by the respondent.
By the tenor of the trust deed, particularly clauses 3, 4, 6 and 7 thereof (supra), read with paragraphs 15, 17 of the appellants statement of defence the trustees of Access Bank Plc Staff Investment Trust Scheme (the Trust Scheme) whose names appear in the first schedule to the trust deed in page 30 of the record as Mr. Herbert Wigwe, Mr. Tek Kotoye, Mr. Demola Oladaiye, Mrs. Iyabo Soji-Okusanya, Mr. Kelechi Nwagbara, Mr. Samaila Aliyu, Miss Lola Agbogun and Mrs. Salewa Fajobi, at all material times operated the trust fund for the general financial management of the trust or institution affecting the interest of third parties, the beneficiaries, among whom the respondent is alleged to be one.
It is trite that only a juristic person known to Law or a person with capacity to sue and be sued can be a proper party in an action. Thus in the fairly recent case of Reptico S.A. Geneva v. Afribank Nigeria Plc (2013) 14 NWLR (pt. 1373) 172 at 207, the Supreme Court held per the lead judgment prepared by his lordship, Ariwoola, J.S.C., as follows
“Generally, the law recognises two categories of person who can be sue and be sued in Court. They are natural persons, with life, mind, brain and physical body and other artificial persons or institutions having juristic personality. See, Attorney-General of Federation v. All Nigeria Peoples Party & Ors (2003) 12 SCM 1 at 12; (2003) 18 NWLR (Pt. 851) 182; (2003) 12 SC (Pt. 11) 146.
In Alhaji Mailafia Trading & Transport Company Ltd. v. Veritas Insurance Company Ltd. (1986) 4 NWLR (Pt. 38) 802, the Court held that a party who should commence action in Court must be a person known to law, that is, a legal person.
In other words, no action can be brought by or against any party other than a natural person or body or persons, unless such a party has been given by statute, expressly or impliedly either (a) a legal personality under the name by which it sues or is sued or (b) a right to sue or be sued by that name. See; Knight and Searie v. Dove (1964) 2 All ER 307, Admin./Estate of Gen. Sani Abacha v. Eke-Spiff & Ors. (2009) 3 SCM 1, (2009) 7 NWLR (Pt. 1139) 97; (2009) NWLR (Pt. 1139) 97.”
In effect, it is the named trustees in the trust deed that are to operate the scheme for the beneficiaries of the scheme, so the named trustees who are natural persons or human beings are thus the suable and proper/necessary parties to be joined in the action as co-defendants, not the Access Bank Plc Staff Investment Trust Scheme, which is only a label or canopy under which the named trustees of the scheme operate and is on that basis not a juristic person as it does not possess the capacity to sue and be sued but has to operate through the named trustees who are human beings that can sue and be sued vide the series of cases (supra) cited on the issue by the appellant.
I think the names of the trustees in the first schedule to the trust deed should have been the persons that should have been joined in the action as human beings or natural persons comprising the trust deed thereof, not the Access Bank of Nigeria Plc Staff Investment Trust Scheme, a non juristic person. Even the prayer in the motion paper (supra) reproduced in the opening part of the ruling of the Court below sought for leave to join the trustees of the scheme as co-defendant, but the Court below strayed from the prayer and ordered that Access Bank Plc Staff Investment Trust Scheme to be joined as the 2nd defendant in the suit when it is not a juristic person vide page 392 of the record.
The proper order should have been to join the named trustees of the scheme who are the natural persons representing the scheme as co-defendant in the action, which was the tenor of the first and principal prayer in the said motion paper. The Court below, therefore, slipped by making the said joinder which turned out to riot with the principal prayer in the motion paper.
Had the respondent filed respondents notice of contention that the decision of the Court below be varied or affirmed on other grounds other than those relied upon by the Court below under Order 9 of the Court of Appeal Rules 2016 (the Rules of the Court), I should have been disposed to order that the names of the trustees mentioned in the first schedule to the trust deed be joined in the action as co-defendant since they are human beings or natural persons with legal personality who at all material times operated the trust scheme for the benefit of the respondent and other staff of the appellant which would have harmonised with the tenor of the motion paper (supra) under Section 15 of the Court of Appeal Act 2004, as amended, read with Order 13 Rule 16(3) of the High Court of Lagos State (Civil Procedure) Rules 2012 (the Rules of the Court below) enjoining the learned Judge of the Court below to order the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings to be added as party to the action.
There is therefore merit in the appeal. I hereby allow it and set aside the ruling of the Court below joining Access Bank of Nigeria Plc Staff Investment Trust Scheme as co-defendant in the action.
The judgment does not foreclose the respondent making a fresh application to have the named trustees of the trust deed joined in the action as co-defendants as the parties are at one that they are a necessary party for the effectual and complete adjudication of the dispute at the Court below. Parties to bear their costs.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead judgment written by my learned brother Joseph Shagbaor lkyegh, JCA, in draft and agree, for the reasons set out therein, that the appeal is meritorious and deserve to be allowed.
I allow the appeal in terms of the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the draft of the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH JCA., whose reasoning and conclusion I adopt in allowing the appeal for being meritorious.
I abide by the consequential orders made in the judgment.
Appearances:
Mr. S. Mustafa with him, Mr. A. Kembi For Appellant(s)
I. W. Egert-Omeneukanrin, Esq. For Respondent(s)
