BANK PHB PLC v. CENTRAL BANK OF NIGERIA & ORS
(2019)LCN/12959(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/20/2013
RATIO
COURT OF APPEAL: WHETHER THE COURT OF APPEAL CAN STRIKE OUT ANY GROUND OF LAW THAT IS SEEN AS INCOMPETENT
It is settled position of the law that this Court is eminently empowered to strike out any ground of law which is seen as incompetent. The Supreme Court in the case of EKUNOLA v. CBN & ANOR.(2013) LPELR-20391 (SC) (P. 59, paras. C-D) per Ngwuta, J.S.C,aptly restated this principle of law thus:
“A ground of appeal which is incompetent for any reason is liable to be struck out. A right of appeal or any other right granted by law cannot be exercised without compliance with the law granting the right, or any other law or rule regulating the exercise of the right.”PER JAMILU YAMMAMA TUKUR, J.C.A.
GROUNDS OF APPEAL: CIRCUMSTANCES WHEN A GROUND CAN BE CONSIDERED INCOMPETENT
Circumstances in which a ground of appeal may be considered as incompetent mainly revolves around instances where the ground fails to comply with the provisions of the rules of this Court or where it does not meet with the purpose of a ground of appeal, which is to attack the decision of the trial Court. Such instances have been held to include: where the ground attacks an obiter dictum instead of the ratio decidendi, and where the ground is vague.
See: ADELEKE V. ASANI & ANOR (2002) LPELR-115(SC); Amakeze v. Onwudiwe & Ors (2013) LPELR-20350 (CA); CAVENDISH PETROLEUM (NIG) LTD & ANOR v. DERIBE (2018) LPELR-45540(CA).
NWLR (Pt. 765) 188; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426.PER JAMILU YAMMAMA TUKUR, J.C.A.
JURISDICTION: WHAT THE PLAINTIFF MUST SHOW IN ORDER FOR THE COURT TO HAVE JURISDICTION IN AN ISSUE RELATING TO REVOCATION OF BANKING LICENSE BY THE CBN GOVERNOR
This Court in Savannah Bank of Nigeria Plc v. Central Bank of Nigeria and 2 Ors (2009) 6 NWLR, p.276, paras D-G, held thus:
In order that the Court may have jurisdiction to entertain the type of action in which a bank is claiming a declaration that the revocation of its banking license by the Governor of the Central Bank was illegal, null and void, the plaintiff has to show or allege bad faith in the way the revocation was done and indicate the elements that constitute bad faith. For it to show bad faith so that its action can be entertained, it would have to indicate how illegal the revocation was done. And this must be done preferably at the threshold of the suit being placed before the Court because the Court is to presume that the act complained of was done in good faith which naturally will deprive it of jurisdiction unless bad faith is positively alleged by the way of its elements.PER JAMILU YAMMAMA TUKUR, J.C.A.
PRELIMINARY OBJECTIONS: WHEN A PRELIMINARY OBJECTION DEALS WITH FACTS, IT MUST BE SUPPORTED BY AN AFFIDAVIT
There are instances where a preliminary objection may deal with facts and the requirement of the law is that such be accompanied with an affidavit as duly done by the Respondents.
See: UMARCO (NIG) PLC v. OFEELLY AGRO-FARMS & EQUIPMENT CO. LTD & ANOR(2016) LPELR-41550(CA); and IWUJI & ORS v. GOVERNOR OF IMO STATE & ORS(2014) LPELR-22824(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.
PRELIMINARY OBJECTIONS: WHEN CAN IT BE RAISED
Furthermore it is trite that a preliminary objection may be raised at any time in a matter, even before the statement of defence is filed and may be raised viva voce. It is indeed different from demurrer which has been extinguished from our laws.
See: AJAYI V. ADEBIYI & ORS(2012) LPELR-7811(SC); STANDARD CLEANING SERVICE COMPANY V. THE COUNCIL OF OAU ILE-IFE(2011) LPELR-4977(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.
FAIR HEARING: IMPORTANCE
Finally with regards to the issue of fair hearing, it is indeed correct to state that the right to a fair hearing is a sacred and fundamental right entrenched in the grundnorm. It must however be stated yet again, that the right to fair hearing is not the right to be heard at all costs, rather, it is the right to be given the opportunity to be heard within the confines of relevant substantive and adjectival laws. Thus where the law provides circumstances in which a party may not be heard, the shutting out of the party in those particular circumstances would not amount to a breach of the party’s right to fair hearing. SeeAjibade Vs State 2012 LPELR 15531 SC; Bakare Vs Lagos State Civil Service Commission & Anor 1992 LPELR 711 (SC); Odunlami Vs Nigeria Navy 2013 LPELR 20701 (SC).PER JAMILU YAMMAMA TUKUR, J.C.A.
COURTS: A COURT CANNOT MAKE A DECISION AGAINST A PERSON THAT WAS NOT MADE A PARTY TO THE SUIT
With regards to issue one, there is no gainsaying the settled position of the law that a Court does not make decisions against a person if such person is not made a party or has no opportunity of defending the suit. The Court?s jurisdiction does not extend to determining the fate of someone or a matter concerning him when such person is not made a party to the action.
See: OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR-41903(SC) (Pp. 48-49, Paras. B-A); BA’AGO & ORS v. ATUWO & ORS(2018) LPELR-43864(CA); and INEC v. DPP & ANOR (2015) LPELR-24900(CA).PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
BANK PHB PLC Appellant(s)
AND
1. CENTRAL BANK OF NIGERIA
2. KEYSTONE BANK LIMITED
3. ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Federal High Court Lagos Division in Suit No. FHC/L/CS/1243/2011 delivered on 14th May, 2012, by Honourable Justice C.E. Archibong against the Appellant.
The material facts of the case culminating in this appeal are that the Appellant acting on the belief that the revocation of its license by the 1st Respondent and eventual sale of its assets were in contravention of the law, instituted an action in the lower Court via a Writ of Summons dated 21st October, 2011, seeking orders principally seeking to overturn the decision of the 1st Respondent revoking the Appellant?s license and transfer its assets through the NDIC and AMCON.
In response to the above, the 1st, 2nd and 3rd Respondents each filed Preliminary Objections, objecting against the jurisdiction of the Court to hear the matter.
Upon argument of the applications, the trial Court in a ruling dated 14th May, 2012 found that the 1st Respondent?s actions were lawful and dismissed Appellant?s suit.
?Dissatisfied with the above, the Appellant appealed
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to this Court vide a Notice of Appeal dated 16th May, 2012.
The Appellant?s Brief of Argument is dated 22nd June, 2015 and filed on 6th June, 2015, but deemed as properly filed on 26th February, 2018. The Reply Brief is dated 31st January, 2017, and filed on 14th November, 2017, but deemed as properly filed on 6th February, 2018.
Learned counsel for the Appellant formulated three issues for determination to wit:
1. Whether the trial Court was not bound to follow the decision in Savannah Bank of Nigeria v. CBN & Ors (2009) 6 NWLR (Part 1137) 232. (Ground 3)
2. Whether the trial Court was right in holding that it cannot possibly find that the decision of the 1st Respondent to revoke the Plaintiff?s banking license and take over its business through the Nigerian Deposit Insurance Corporation (NDIC) and the purported sale of same to the 2nd Respondent is tainted with malice, prejudice and bad faith, without conducting trial. (Ground 4)
3. Whether the trial Court breached the Appellant?s right to fair hearing in holding that the Appellant was not denied fair hearing by the 1st Respondent in the revocation of the
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Appellant?s license on 5th August, 2011, without giving the Appellant an opportunity to establish its case at trial.
On the other hand, the 1st Respondent?s Brief is dated and filed on 11th November, 2016, but deemed as properly filed on 6th February, 2018.
Learned counsel for the 1st Respondent distilled a sole issue for determination thus:
Whether or not the trial Court was right in striking out the suit as urged by the Respondent without conducting a trial of the Claim raised on the Writ of Summons.
The 2nd Respondent?s Brief of Argument is dated 7th September, 2016, and filed on 14th September, 2016, but deemed as properly filed on 6th February, 2018.
Learned counsel distilled three issues to wit:
1. Whether the lower Court was bound to conduct trial in the matter before making a finding that the Appellant?s case disclosed no bad faith;
2. Whether the lower Court was right in holding that the originating processes disclosed no prima facie evidence of bad faith;
3. Whether the lower Court breached the Appellant?s right to fair hearing.
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The 3rd Respondent?s Brief of Argument is dated and filed on 16th February, 2016, but deemed as properly filed on 6th February, 2018.
Learned counsel for the 3rd Respondent distilled two issues for determination to wit:
1. Whether the Court below was right when it held that it cannot find that any decision of the 1st Respondent to revoke the Appellant?s banking license is tainted with malice and/or bias, prejudice and discrimination and bad faith. (Ground 1 & 3)
2. Whether the lower Court breache the Appellant?s right to fair hearing.
On the date of hearing of the appeal i.e. on 23rd day of January, 2019 learned counsel for the 1st Respondent moved his application filed on 7th February 2017 wherein he seeks the following reliefs:-
a. An Order, striking out Grounds 1 and 2 of the Appellant?s Notice of Appeal for being incompetent as the said grounds do not attack the ratio decidendi of the lower Court.
b. An Order striking out Ground 3 of the Appellant?s Notice of Appeal for being incompetent as the said ground does not arise from the ruling of the lower Court appealed against.
c. An Order striking out Issue 1 of the Appellant?s Brief
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of Argument and the arguments thereon for having been formulated from the incompetent Ground 3 of the Notice of Appeal.
d. An Order striking out Issue 3 of the Appellant?s Brief of Argument and the arguments thereon for having been formulated from the incompetent Grounds 1 and 2 of the Notice of Appeal
e. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application rested is set out hereunder thus:-
i. Grounds 1 and 2 of the Appellant?s Notice of Appeal dated 16th of May, 2012 contained on pages 534 to 538 of the record do not attack the ratio decidendi of the lower Court.
ii. In the circumstances, grounds 1 and 2 are incompetent and should accordingly be struck out by this Honourable Court.
iii. Ground 3 of the Appellant?s Notice of Appeal dated 16th of May, 2012 contained on pages 534 to 538 of the record does not arise from the decision of the lower Court.
iv. The lower Court did not decide, contrary to Ground 3 of the Appellant?s Notice of Appeal, that the case of Savannah Bank of Nigeria Plc v. CBN and 2 Ors (2009) 6
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NWLR (Pt.1137) 232 was not applicable to the Appellant?s case.
v. In the circumstances, the said Ground 3 is incompetent and should be struck out.
vi. Issues 1 and 3 of the Appellant?s Brief of Argument are incompetent the same having been formulated from Grounds 1, 2 and 3 of the Notice of Appeal and must be struck out by this Honourable Court.
In the written address in support of the application, learned counsel distilled a lone issue viz:-
Whether or not the 1st Respondent/Applicant is entitled to the reliefs sought in this application.
Learned counsel submitted that ground 1 & 2 are incompetent and should be struck out as no issue was raised in the 1st Respondents notice of preliminary objection as to the issue of fair hearing to the Appellant and as to whether the 1st Respondent followed due process in the revocation of the Appellants banking licence before the lower Court it is further submitted that the statement of the lower Court was mere obiter dicta since neither the issue of fair hearing nor due process were raised or argued in the lower Court.
?
On ground 3, learned counsel for the 1st Respondent contended
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that an examination of the Ruling of the lower Court will show clearly that the lower Court did not hold that the case of Savanah Bank of Nigeria Plc Vs CBN & 2Ors (2009) 6 NWLR (Pt. 1137) 232 was in applicable to the case of the Appellant in the suit before it. Learned counsel submitted that ground 3 is also incompetent and same should be struck out.
As a consequence of all these learned counsel argued that issues 1 & 3 distilled from the incompetent grounds 1,2, and 3 should also be struck out as the issues do not have a valid foundation.
On this and the other arguments, learned counsel drew our attention to the following authorities:-
C.C.B Plc Vs Ekperi (2007) 3 NWLR (Pt.1022) 493 at 509; Agbaka Vs Amadi (1998) 11 NWLR (Pt. 572) 16@ 24. The Appellant did not respond to the Application while the 2nd and 3rd Respondents have no objection to the grant of same.
RESOLUTION
It is settled position of the law that this Court is eminently empowered to strike out any ground of law which is seen as incompetent. The Supreme Court in the case of EKUNOLA v. CBN & ANOR.(2013) LPELR-20391 (SC) (P. 59, paras. C-D) per Ngwuta, J.S.C,aptly
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restated this principle of law thus:
“A ground of appeal which is incompetent for any reason is liable to be struck out. A right of appeal or any other right granted by law cannot be exercised without compliance with the law granting the right, or any other law or rule regulating the exercise of the right.”
Circumstances in which a ground of appeal may be considered as incompetent mainly revolves around instances where the ground fails to comply with the provisions of the rules of this Court or where it does not meet with the purpose of a ground of appeal, which is to attack the decision of the trial Court. Such instances have been held to include: where the ground attacks an obiter dictum instead of the ratio decidendi, and where the ground is vague.
See: ADELEKE V. ASANI & ANOR (2002) LPELR-115(SC); Amakeze v. Onwudiwe & Ors (2013) LPELR-20350 (CA); CAVENDISH PETROLEUM (NIG) LTD & ANOR v. DERIBE (2018) LPELR-45540(CA).
Learned counsel has sought to impugn Grounds 1 and 2, by alleging that they do not constitute an attack on the ratio decidendi of the lower Court?s decision, but a careful examination of the ruling in
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question reveals that this is not the case. As part of the decision, at page 531, the lower Court clearly held that it could not hold that there was a breach of the Appellant?s right to fair hearing and that it could not hold that the Appellant did not follow due process, and gave reasons for its position. While it is true that obiter dicta, or passing remarks made by a Judge in its decision ought not to be made the subject of an appeal, that principle is inapplicable here. I am also guided by the admonition of the Supreme Court inIGP & ORS v. MOBIL PRODUCING (NIG) UNLTD & ORS (2018) LPELR-44356(SC)per PETER-ODILI, J.S.C. (Pp. 15-17), paras. D-B, to the effect that an Appellate Court should not be quick to strike out Grounds of appeal, and that even when obiter forms part of the decision, or closely linked to the ratio, then the ground arising from such ought not to be struck out.
?The mere fact that a party did not canvass a point during the presentation of his case, does not mean that in all circumstances, the Court cannot decide that point or that any decision of the Court on that point is unappealable. Courts of justice in the course of
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adjudication, may decide on points of law, which may have an impact on the decision, regardless of whether the parties raised the point. This is an exception to the general rule that a Court ought not to raise issues suo motu and resolve them without hearing from the parties. See: Akeredolu v. Abraham & Ors (2018) LPELR-44067 (SC).
What happened in this appeal, is that the Court addressed the issues of fair hearing and due process as it relates to the facts before the lower Court, and the Appellant is now complaining that such ought not to have been decided at that stage, since in Appellant?s opinion, they are substantive issues that could only be properly resolved at a full trial. The implication of the foregoing, is that Grounds 1 and 2 are proper.
Ground 3 cannot also be said to be a ground that did not arise from the decision of the lower Court. The ground is asserting that the trial Court was wrong to have refused to be bound by the case of Savannah Bank of Nigeria Plc v. CBN and 2 Ors (2009) 6 NWLR (Pt.1137).
Looking at the Ruling of the lower Court vis a vis ground 3 of the notice of appeal I am not in any doubt that same arose
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from the decision of the lower Court. I therefore do not find merit with the Application and same is dismissed.
A calm look at all the issues formulated by counsel reveals that they are the same in substance and dwell on whether the trial Court was right in dismissing the Appellant?s case without proceeding to trial. I therefore adopt 1st Respondent?s sole issue for the purpose of convenience in determining this appeal.
ISSUE:
WHETHER OR NOT THE TRIAL COURT WAS RIGHT IN STRIKING OUT THE SUIT AS URGED BY THE RESPONDENT WITHOUT CONDUCTING A TRIAL OF THE CLAIM RAISED ON THE WRIT OF SUMMONS.
Learned senior counsel for the Appellant argued that the trial Court was wrong to have decided the matter without a full trial, as that was the only way it could have properly evaluated the evidence of the parties and determine the issue whether the actions of the 1st Respondent in question was devoid of good faith. He submitted further that the preliminary objections and affidavits filed by the Respondents was not the proper means to evaluate evidence on the issue of bad faith, because a preliminary objection is based on a presumption that the
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facts averred in the Statement of Claim are true but a reasonable cause was not made; it cannot be an opportunity to bring up contrary facts; the 1st Respondent?s affidavit, which the trial Court relied heavily on, only revealed the state of affairs of the Appellant?s Bank as at 2nd October, 2009, not the state of affairs as at August 2011, which formed the basis of the Appellant?s state of affairs as averred in its Statement of Claim; and the issues raised in Respondents? preliminary objections are factual and brought by way of demurrer which has been abolished.
He relied on the following cases: Lexington International Insurance Co. Limited v. Sola Holdings Limited (2006) 7 NWLR (Pt. 980) 465; Yakaje v. Haire (2003) 10 NWLR (Pt. 828) 270; Falobi v. Falobi (1976) 9-10 SC 1; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Central Bank of Nigeria v. Industrial Bank Limited (1997) 9 NWLR (Pt. 522) 712; Federal Civil Service Commission v. Laoye (1989) 2 NWLR (Pt. 106) 625; UBA v. Immarches (Nig) Ltd (2003) 6 NWLR (Pt. 817) 529; Ndigwe v. Ibekendu (1998) 7 NWLR (Pt. 558) 486; SCC (Nig) Limited v. Our Line Limited (1995) 5 NWLR (Pt.
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395) 364; Adenuga v. Odumeru (2003) 8 NWLR 163 at 187; and Akinbi v. Military Governor Ondo State (1990) 3 NWLR (Pt. 140) 525.
Learned senior counsel also argued that the trial Court?s holding to the effect that the 1st Respondent?s actions were not tainted with malice and bad faith, was erroneous, as the Appellant?s Statement of Claim clearly made out a case for bad faith on 1st Respondent?s part, as borne by the fact that: the Appellant was not one of the 10 Banks found to be under financial stress by the 1st Respondent?s audit report released on 14th August, 2009; sacking of the Appellant?s Board of Directors on 2nd October 2009 by 1st Respondent which was predicated on the report of the joint examination of the Appellant by the 1st Respondent and NDIC dated 30th June, 2009; transfer of Appellant?s assets to NDIC despite announcement extending the recapitalization deadline to 30th September, 2011; the 10 Banks which were said to be in distress in the 1st Respondent?s audit report were allowed to recapitalize; and the sale of the Appellant?s assets by NDIC to AMCON on Sunday, 7th August 2011, a non-working day.
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Learned senior counsel submitted that the trial Court ought to have followed the decision and adopted the procedure in Savannah Bank of Nigeria Plc v. Central Bank of Nigeria & Ors (2009) 6 NWLR (Pt.1137) 237, wherein a similar issue was only determined upon a full trial.
He cited the cases of Adis Ababa v. D.S. Adeyemi (1976) 12 SC 51; and Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 64.
He also submitted that Section 5(4)of the Banks and Other Financial Institutions Act Cap. B3 Laws of the Federation of Nigeria 2004, makes it mandatory for a Bank in the Appellant?s position to be given opportunity to make representations before its license is revoked by the 1st Respondent; that the failure of the 1st respondent to give the Appellant said opportunity is a breach of its fundamental right. He further submitted that the decision of the trial Court in dismissing the Appellant?s suit.
He relied on the following:
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Onyekwuluje v. Benue State Government (2005) 8 NWLR (Pt. 928) 614; Olufeagba v. Abdur-Raheem (2009) 18 NWLR (Pt.
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1173) 384; Okoreaffia v. Agwu (2008) 12 NWLR (Pt. 1100) at 195; Fagbule v. Rodriguez (2002) 7 NWLR (Pt. 765) 188; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt. 300) 426.
On the other hand, learned senior counsel for the 1st Respondent argued that the lower Court was right to determine the issue of jurisdiction on grounds of non-compliance with Section 53 of BOFIA without conducting a trial, as same was the subject of a preliminary objection; the issue could be determined from the pleadings; issue of bad faith in an action involving revocation of banking license is a jurisdictional matter that ought to be determined at the threshold and once the Court finds no positive allegation of bad faith, the Court will lack jurisdiction to entertain the matter.
He relied on Nwankwo v. Yar?adua (2010) 12 NWLR (Pt. 1209) 518; Adigun v. Ayinde (1993) 8 NWLR Pt. 313 page 516 at 535 para F-H; Mills v. Renner 1940 6 WACA at 144; and Ajayi v. Adebiyi & Ors 2012 11 NWLR Pt. 1310 page 137 at 173 para G-H.
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Learned senior counsel also argued that the trial Court?s decision that there no bad faith on 1st Respondent?s part is sound as it was based on proper evaluation of the averments in the Statement of Claim, which did not reveal a proper allegation of bad faith with requisite positive elements; and the fact that the cogent reasons adduced by the 1st Respondent as reasons for the revocation was not contravened by the Appellant.
He cited Umanah v. Attah (2006) 17 NWLR (Pt. 1009) 503 at 525 para E-F; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; Yar?Adua and Ors v. Yandoma & Ors (2014) LPELR-24217(SC); and AGF v. ANPP (2003) 18 NWLR (Pt. 851) 182.
He submitted that the trial Court was not bound on the authority of Savannah Bank of Nigeria v. CBN & Others, to conduct a trial before it could determine the issue, because the only reason why a trial was conducted in that case was that the preliminary objection therein was raised in the final written address, and the Court held that the issue was a threshold matter.
?
He also submitted that the Appellant?s right to fair hearing was not breached by the lower Court as
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the decision to dismiss was the only lawful order upon a finding that the lower Court lacked jurisdiction to entertain the matter; and that Appellant?s arguments as to breach of its right to fair hearing by the 1st Respondent ought to be disregarded by this Court as it is not within the subject matter of this appeal.
On his part, learned counsel for the 2nd Respondent argued that the law does not require a full trial before the issue before the lower Court could be determined.
He relied onSavannah Bank of Nigeria v. CBN & Ors (2009) 6 NWLR (Part 1137) 232; NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272; Offoboche v. Ogoja Local Government & Anor (2001) 16 NWLR (Pt. 1137) 232; Ogbuanyinya v. Okudo (1990) (No. 2) 4 NWLR (Pt. 146) 551; and WAB Ltd v. Savannah Ventures Ltd (2002) 10 NWLR (Pt. 775) 401.
Learned counsel also argued that the Appellant failed to properly establish bad faith on the 1st Respondent?s part; and that the 1st Respondent at all times acted in utmost good faith with regards to the revocation of the Appellant?s license, as shown in acts of injecting funds and change of management before eventual
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revocation of the license.
Counsel submitted that the Appellant was given fair hearing, as it was fully heard on the preliminary objection, before a decision was taken on it. He cited the cases of Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Lagos Sheraton Hotel & Towers v. Hotel and Personal Services Senior Staff Association (2014) (Pt. 1426) p. 71.
On his part, learned senior counsel for the 3rd Respondent argued that the matter was properly decided upon the preliminary objection, which is distinct from demurrer; that the decision of the trial Court dismissing the matter because it could not find malice was proper, because it was based on the failure of the Appellant to show that there was bad faith in the CBN?s action, which is a condition precedent to the assumption of jurisdiction in the circumstances and the uncontroverted averments of the 1st Respondent in paragraph 5(a) of its affidavit in support of its preliminary objection.
He relied on Lafia Local Govt v. Gov. Nasarawa State & Ors (2012) 17 NWLR (Pt. 1318) 94 at 124; Okonkwo v. Okebukola (2013) 17 NWLR (Pt. 1384) 552 at 556-557; NURTW v. RTEAN (2012)
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10 NWLR (Pt. 1307) 170 SC 189 (para A-C); LLSPIA Ltd v. M/T Tuma (2011) 15 NWLR (Pt. 1271) 612; Microsoft Corp v. Franike Asso. Ltd (2012) 3 NWLR (Pt. 1287) 301 at 325-326; and NDIC v. CBN & Anor (2002) FWLR (Pt. 99) 1021.
Learned senior counsel also argued that the decision of the Court in Savannah Bank of Nigeria v. CBN & Ors (2009) 6 NWLR (Part 1137) 232, is not applicable as no preliminary objection was raised in that case.
Senior counsel submitted that the issue of fair hearing did not arise at trial, as the very nature of a preliminary objection is that if upheld, would render further proceedings unnecessary and after the decision of the trial Court upholding the preliminary objection, it could not proceed to evaluate evidence in a trial.
He relied on Margi & Ors v. Yusuf (2009) 17 NWLR (Pt. 1169) 162 at 180; Olateju v. Commissioner for Lands and Housing, Kwara State & Ors (2010) 14 NWLR (Pt. 1213) 297 at 317; Lagos Sheraton Hotel and Towers v. Hotel and Personal Service Senior Staff Association (2014) 14 NWLR (Pt. 1426) 45 at 71; Adeyemi v. The State (2011) 5 NWLR (Pt. 1239) 1 at 40; and Ekunola v. CBN & Anor (2013) 15 NWLR (Pt. 1377) 224 at 265.
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In the reply brief, Appellant?s counsel submitted that the the Appellant complied with the requirements for the invocation of the Court?s jurisdiction in line with Section 53 of BOFIA and NDIC v. CBN & Anor (2002) FWLR (Pt. 99) 1021 and that the trial Court failed to properly consider the relevant processes which he ought to have considered, namely the statement of claim and the particulars of bad faith made out therein in order to determine whether it had jurisdiction to hear the matter.
Appellant?s counsel also submitted that the main grouse which the appeal is aimed at is that the trial Court wrongly decided the substantive issue of existence or otherwise of bad faith in the 1st Respondent?s actions.
He posited that the Appellant?s locus standi to institute could not be challenged without the filing of a Defence.
He relied on: Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 75; APGA v. Anyanwu & 2 Ors (2014) Nwuke Esq v. Onyike (2013) LPELR-21238 (CA); Tukur v. Governor Gongola State (1989) 4 NWLR (Pt. 117) 517; Adeyemi v. Opeyori 1976 9-10 SC 31; Tabiowo v. Disu (2008) 7
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NWLR (Pt. 1087) page 533 at 539; North-South Pet. (Nig) Ltd v. FGN (2002) 17 NWLR pt. 797 page 639 at 643; Adewale v. Gov Ekiti State (2007) 2 NWLR (Pt. 1019) page 634 at 641; L. Intl Ins Co. Ltd v. Sola Holdings Ltd (2006) 7 NWLR (Pt.980) page 465 at 469.
RESOLUTION
The question as to whether the matter was validly determined via the way and manner in which the trial Court did, can only be properly resolved by a considered examination of the provisions of Section 53 (1) of Banks and other Financial Institutions Act, which is herein reproduced thus:
Neither the Federal Government nor the Bank nor any officer of that Government or Bank, shall be subject to any action, claim or demand by or liability to any person in respect of anything done or omitted to be done in good faith in pursuance or in execution of, or in connection with the execution or intended execution of any power conferred upon that Government, the Bank or such officer, by this Act.
A calm look at the above reveals that once an act is done in good faith by the Appellant, such cannot be subject of litigation.
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The Supreme Court in NDIC v. CBN (2002)7 NWLR (pp.297, paras B-C, G-H) addressing a similar issue held thus:
?In order that the Court may have jurisdiction to entertain the type of action as in this case in which the 2nd Respondent is claiming a declaration that the revocation of its banking license by the Governor of the Central Bank of Nigeria (1st respondent) was ?capricious?, illegal, null and void as same is based on a cause not cognizable under Section 12 of the Banks and Other Financial Institutions Decree, 1991 (BOFID), the plaintiff has to show or allege bad faith in the way the revocation was done and indicate the elements that constitute bad faith. For it to show bad faith so that its action could be entertained, it would have to indicate how capricious and illegal the revocation was. This must be done preferably at the threshold of the suit being placed before the Court because the Court is to presume that the act complained of was done in good faith which naturally will deprive it of jurisdiction unless bad faith is positively alleged by way of its elements.
In this case, having reached the conclusion that the 2nd respondent failed to show that there was bad faith in the action
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of the 1st respondent in revoking its banking licence, which bad faith would have given jurisdiction to the Court, and that the trial Court rightly held at the stage it did that it had no jurisdiction, the Court of Appeal was wrong to have held to the contrary.?
This Court in Savannah Bank of Nigeria Plc v. Central Bank of Nigeria and 2 Ors (2009) 6 NWLR, p.276, paras D-G, held thus:
?In order that the Court may have jurisdiction to entertain the type of action in which a bank is claiming a declaration that the revocation of its banking license by the Governor of the Central Bank was illegal, null and void, the plaintiff has to show or allege bad faith in the way the revocation was done and indicate the elements that constitute bad faith. For it to show bad faith so that its action can be entertained, it would have to indicate how illegal the revocation was done. And this must be done preferably at the threshold of the suit being placed before the Court because the Court is to presume that the act complained of was done in good faith which naturally will deprive it of jurisdiction unless bad faith is positively alleged by the way of its elements.?
23
See: CBN v. JUDGMENT BUREAU DE CHANGE LTD(2017) LPELR-43274(CA).
From the above, it is clear that the condition precedent to the assumption of jurisdiction by a trial Court in a matter where the revocation of license by the Central Bank of Nigeria is the subject matter, is that the Plaintiff must positively show bad faith on the part of the CBN. The bad faith is not an issue for trial, but must be visible on the face of the Plaintiff?s claim.
?I also disagree with the submission of Appellant?s counsel that the trial Court did not properly consider relevant processes before reaching its decision. A look at the ruling of the trial Court reveals that it indeed examined the processes filed by the Appellant, but was not satisfied that positive allegations of bad faith had been made against the 1st Respondent, of such a nature as to shift the presumption of regularity which ennures in favour of the 1st Respondent. The implication being that the actions of the 1st Respondent were done in good faith, and consequently robbed the lower Court of its jurisdiction to hear the matter.
Learned Silk?s attempt to impugn the
24
veracity of the procedure adopted by the lower Court while gallant, does not represent the position of the law.
There are instances where a preliminary objection may deal with facts and the requirement of the law is that such be accompanied with an affidavit as duly done by the Respondents.
See: UMARCO (NIG) PLC v. OFEELLY AGRO-FARMS & EQUIPMENT CO. LTD & ANOR(2016) LPELR-41550(CA); and IWUJI & ORS v. GOVERNOR OF IMO STATE & ORS(2014) LPELR-22824(CA).
Furthermore it is trite that a preliminary objection may be raised at any time in a matter, even before the statement of defence is filed and may be raised viva voce. It is indeed different from demurrer which has been extinguished from our laws.
See: AJAYI V. ADEBIYI & ORS(2012) LPELR-7811(SC); STANDARD CLEANING SERVICE COMPANY V. THE COUNCIL OF OAU ILE-IFE(2011) LPELR-4977(CA).
Finally with regards to the issue of fair hearing, it is indeed correct to state that the right to a fair hearing is a sacred and fundamental right entrenched in the grundnorm. It must however be stated yet again, that the right to fair hearing is not the right to be heard at all costs, rather, it
25
is the right to be given the opportunity to be heard within the confines of relevant substantive and adjectival laws. Thus where the law provides circumstances in which a party may not be heard, the shutting out of the party in those particular circumstances would not amount to a breach of the party?s right to fair hearing. SeeAjibade Vs State 2012 LPELR 15531 SC; Bakare Vs Lagos State Civil Service Commission & Anor 1992 LPELR 711 (SC); Odunlami Vs Nigeria Navy 2013 LPELR 20701 (SC).
In light of the above, I do not agree with Appellant?s assertion that the lower Court breached its right to fair hearing, as the proceedings before the lower Court was conducted in accordance with the applicable law.
The sole issue is resolved against the Appellant and the appeal is dismissed.
JUDGMENT ON THE CROSS APPEAL OF 1ST RESPONDENT/CROSS APPELLANT
The material facts leading to the 1st Respondent/Cross Appellant?s Cross Appeal is that the 1st Respondent/Cross Appellant filed a Notice of Preliminary Objection dated 17th November, challenging the jurisdiction of the lower Court to hear the Appellant/Cross Respondent?s matter
26
on the following grounds:
1. The action is brought in the name of the Plaintiff without any authority or authorization of the Plaintiff Company.
2. This action is not authorised by the Board of Directors of the Plaintiff and/or there is no valid authority by the Plaintiff?s Board of Directors to institute this action.
3. Having regard to the true and proper meaning and intendment of Section 53(1) of the Banks and Other Financial Institutions Act Cap B3, Laws of the Federation of Nigeria, 2004, the Court has no jurisdiction to entertain the suit as constituted against the 1st Defendant/Applicant.
4. This suit is not properly constituted.
5. The suit is otherwise wholly incompetent.
The lower Court subsequently determined the matter on the grounds that there was no bad faith on the1st Respondent/Cross Appellant?s part, essentially constituting only one of the grounds enumerated above. Dissatisfied with this, the 1st Respondent/Cross Appellant filed a Notice of cross Appeal dated 9th August, 2016 against the ruling of the Court.
?
1st Respondent/Cross Appellant?s Brief of Argument settled by Kola Awodein SAN, is
27
dated and filed on 11th November, 2016, but deemed as properly filed on 6th February, 2018. Three issues were raised therein to wit:
a. Whether or not the learned trial Judge was right when he failed to consider and/or make any finding on 3 of the issues raised in the Cross Appellant?s Notice of Preliminary Objection after same has been duly argued before the Court. (Ground 1)
b. If the answer is in the negative, whether or not the lower Court ought not to have struck out and/or dismissed the suit on each of the grounds set out in the Notice of Preliminary Objection. (Grounds 2, 3 and 4)
c. Whether or not the learned trial Judge was right when he held the Defendant?s position would be upheld or will crumble and disintegrate upon the determination of the validity or otherwise of the Objection. (Ground 5)
No response was filed to the Cross Appellant?s Brief and I adopt the issues raised therein for the purpose of convenience in determining this appeal. The issues will be taken together as they are intertwine.
On issue one, learned senior counsel for the Cross Appellant argued that of the four issues it raised in the
28
Preliminary Objection before the lower Court which are: a. Whether this suit was properly commenced and in consequence whether the Court has jurisdiction to entertain this suit; b. Whether or not the Federal High Court has jurisdiction to entertain this suit having regard to the provisions of Section 53(1) and (2) of Banks and Other Financial Institutions Act Cap B3 Laws of the Federation of Nigeria, 2004; c. Whether or not this suit is properly constituted and in consequence whether this Court has jurisdiction to entertain it; and d. Whether this action or the relief(s) sought herein is statute barred and in consequence whether or not this Court has jurisdiction to entertain this action or the relief(s) sought herein, only the second issue which covers ground 3 of it?s preliminary objection was considered by the trial Judge, and that it was wrong for the trial Judge to fail to pronounce or make findings on the other 3 issues properly raised before it.
?
He relied on Cookey v. Fombo (2005) 15 NWLR (Pt. 947) 182; Nokoprise Co. Ltd v. Dobest Trading Corp (1997) 9 NWLR (Pt. 52p) 334; Brawal Shipping v. Onwadike (2000) 6 SCNJ 508 at 552; and Araka v. Ejeagwu (2000) 72 SC (Pt. 1).
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With regards to issue two, learned senior counsel for the Cross Appellant first argued that the suit of the Cross Respondent at trial was incompetent because it lacked the required authority of either the Board of Directors or members of the company at a general meeting before the action could be brought in the company?s name. He further submitted that the Cross Respondent failed to establish this authority and did not deny the averment in the Cross Appellant?s affidavit to the effect that the said authority was absent.
He relied on Melifonwu v. Egbuji (1982) 13 NSCC 347; Asaboro v. Western Nigeria Financial Corp (1974) NCLR 226 at 272-273; and Provincial Highway Chemist (Nig) Ltd v. Umaru (1986) FHCLR 196 at 202.
Learned senior counsel also argued that the suit brought before the lower Court was not properly constituted because NDIC, against whom the Cross Appellant claimed certain reliefs was not made a party in contravention of settled principles of law in that regard.
He cited Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597 at 615; Plateau State v. AGF (2006) 3 NWLR (Pt. 967) 346 at 423; and
30
Amadiume v. Ibok (2006) 6 NWLR (Pt. 975) 158 at 173.
He submitted that the matter is statute barred because the Cross Respondent?s main cause of action, which is the imposition of a new management by the Cross Appellant, occurred on 2nd October, 2009, whereas the action was instituted on 24th October, 2011, more than 3 months after and outside the period of limitation for the bringing of actions against public officers/institutions such as the Cross Appellant.
Section 2(a) of the Public Officers Protection Act, Cap 379, Law of the Federation of Nigeria, 1990; Obiefuna v. Okoye (1964) NSCC 54; Ejiofodomi v. Okonkwo (1982) NSCC (Vol. 13) 422 at 435-436; and Owie v. Ighiwi (2005) 5 NWLR (Pt. 917) 184 at 223.
On Issue three, learned senior counsel argued that the decision of the trial Court to the effect that the Defendant?s position would be upheld or will crumble and disintegrate upon the determination of the validity or otherwise of the Objection, is erroneous as it presupposes that the preliminary objection challenging the jurisdiction of the lower Court is a demurrer, which is distinct from a preliminary objection.
31
He cited the case of Ajayi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137.
Learned senior counsel urged this Court to invoke Section 15 of the Court of Appeal Act 2004 and decide on the issues argued before the lower Court, which were not determined.
He relied on the cases of Dapianlong & Ors v. Dariye & Anor (2007) 4 SC (Pt. III) 118 at 166-167; and CGG (Nig) Ltd v. Ogu (2005) 8 NWLR (Pt. 927) 366.
RESOLUTION
The law with regards to the duty of the Court to pronounce on the issues before it is clear and to the effect that it is mandatory for the Court below to make a definite finding on the issue presented before it and to resolve same one way or the other.
The Supreme Court in the case of C. N. OKPALA & SONS LTD v. NB PLC (2017) LPELR-43826(SC)(P. 17, Paras. A-F), per Okoro JSC, held thus:
“In several decisions of this Court, it has been repeatedly held that all lower Courts, as a general rule, must pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on
32
them will certainly lead to a miscarriage of justice. There is therefore need for every Court or Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so, as I said earlier, may result in a miscarriage of justice.?
See:IKPEAZU v. OTTI & ORS(2016) LPELR-40055(SC); PAN OCEAN OIL CORP. (NIG) LTD v. FMON (NIG) LTD & ANOR (2018) LPELR-44173(CA); and MEKWUNYE v. LOTUS CAPITAL LTD & ORS (2018) LPELR-45546(CA).
There is also no gainsaying the fact that a Company acts through its organs, which are principally the Board of Directors, or the Members at a General Meeting. The law is settled that except in special cases of minority protection, before a person may bring an action in the name of a company, such a person or group of persons must be armed with the authority of the company expressed through any of its organs.
What are the conditions that must be satisfied before a suit can be commenced in a Court of law in the name of a company. Section 63 (b) and (5)(b) of the Companies and Allied Matters Act provides as follows:- 63(3) except as otherwise provided
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in the company? Articles, the business of the company shall be managed by the board of Directors who may exercise such powers of the company as are not by this Act or the articles required to be exercised by the members in general meeting;
63(5)(b) notwithstanding the provisions of Sub-section (3) of this section, the members in general meeting may (a)?
(b) Institute legal proceedings in the name and on behalf of the company, ratify or confirm any action taken by the board of directors; or neglect to do so.
Adverting my mind to the above provisions, I am clear in my mind that a suit or legal proceedings can only be commenced for and on behalf of a company with the authority of the Directors or members in a general meeting.
See Odutola Holdings Ltd Vs Ladejobi 2006 12 NWLR Pt 994 pt. 321. By the provisions of Section 63(3) and 5(b) of the Act a condition precedent was established which must be satisfied before commencing a legal proceedings with the name of a company. Where this condition is not satisfied or fulfilled any legal action or suit commenced before a Court of law is incompetent. SeeAdegbenro Vs
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Akintilo (2010) 3 NWLR Pt 1182 p.541 at 562. There is nothing in the pleadings of the cross Respondent in the lower Court to show that the directors or the members in a general meeting authorized the institution of the suit in the name of the Cross Respondent.
The condition precedent to the institution of the suit by the cross Respondent before the lower Court was not satisfied and this made the action incompetent.
See: PLATEAU STATE GOVERNMENT V. CREST HOTEL & GARDEN LTD(2012) LPELR-9794(CA).
It is also well settled law that a Court of law cannot give a judgment against a person if such 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 matter concerning him when such person is not made a party to the action.
In the case of OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR-41903(SC) (Pp. 48-49, Paras. B-A), the Apex Court per PETER-ODILI, J.S.C, held thus:
?The resultant effect is that the appellants being necessary interested parties who ought to be heard and were not joined in suit, the orders made against them by the trial judge and the
35
entirety of the proceedings, thereby would come to naught as they had been denied of their right to fair hearing. The situation makes the stance of the Court of Appeal not to be agreed upon at this level. See Ovunwo & Anor v. Woko & Ors (2011) 7 SCM 207 at 231-232; NURTW & Anor v. RTEAN & Ors (2012) 3 SCM 171 at 178-179; Tanko v. UBA (2010) 11 SCM 199 at 212. In fact this matter of the breach, is fundamental as it shows the unassailable reason for which the decision of the Court of Appeal alongside the trial judge’s cannot be sustained as a clear miscarriage of justice has occurred. The necessary party being absent before Court and its hearing and determination, the proceedings done are evidently in breach of the appellants right to fair hearing and therefore a nullity.?
See: BA’AGO & ORS v. ATUWO & ORS(2018) LPELR-43864(CA); and INEC v. DPP & ANOR (2015) LPELR-24900(CA).
The implication of the above is that the parts of the reliefs sought at the lower Court which has to do with the Nigerian Deposit Insurance Commission and the Asset Management Company of Nigeria, will of necessity be struck out.
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There is also no doubt that public officers, including government agencies such as the Cross Appellant herein enjoy a form of protection by virtue of Section 2 of the Public Officers Protection Act, to the effect that persons who are aggrieved by the acts or omission of such public officers, have a period of three months within which to institute an action to remedy the wrong. Failure to institute the action within the said time frame would render it statute barred.
See: IBRAHIM v. LAWAL & ORS (2015) LPELR-24736(SC); TAJUDEEN v. FIRS (2018) LPELR-43856(CA); MAKAAN v. HANGEM & ORS(2018) LPELR-44401(CA); and CBN & ANOR v. MICHAEL(2018) LPELR-44251(CA).
?The question that must therefore be answered is whether the Cross Respondent?s action is statute barred. A look at the Cross Respondent?s claim reveals that the cause of action crystallized on 5th August, 2011, when the alledge transfer and/or sale of the assets of the Cross Respondent, the revocation of its Banking License and forceful take-over of its premises and operations by the Nigeria deposit insurance corporation in conjunction with the cross Appellant and asset management corporation
37
of Nigeria, while the action was filed on 24-10-2011. It cannot therefore be said that the action was statute barred.
In summation the Cross Appeal succeed in part to the extent that the failure of the Cross Respondent to furnish evidence before the lower Court on its authority to institute the suit divest the lower Court of the jurisdiction to hear the case, same having been initiated without recourse to due process. The suit instituted by the cross Respondent in the lower Court is hereby struck out for being incompetent.
JUDGMENT IN THE CROSS APPEAL OF 3RD RESPONDENT/CROSS APPELLANT
Learned senior counsel for the 3rd Respondent/Cross Appellant also filed a Cross Appellant Brief via which he formulated four issues for determination to wit:
1. Whether the lower Court was right when it failed to consider that paragraphs (36) (i) (v) and (vi) of the Appellant?s Writ of summons are invalid, unenforceable and incompetent as they contain reliefs sought to be made against legal persons not joined as parties to the suit (Ground 3)
2. Whether the learned trial Judge was right by failing to hold that the Appellant?s suit at the
38
lower Court is statute barred against the Cross-Appellant, same having been instituted after the statutorily approved time within which to institute the action. (Ground 4)
3. Whether the lower Court was right when it failed to consider that in the circumstance, there was no authority from any of the organs of the Appellant Company to commence the suit at the lower Court in the name of the Appellant (Ground 2)
4. Whether the Court below was right when it failed to consider the Cross-Appellant?s Motion for Preliminary Objection and make pronouncement on issues raised therein. (Ground 1)
I adopt the issues raised above for the purpose of convenience in determining this appeal.
?
On issue one, learned senior counsel for the 3rd Respondent/Cross Respondent argued that by the reliefs of the Cross Respondent before the lower Court, NDIC and AMCON were necessary, proper parties, who would be affected by the Court?s decision and failure to make them parties to the suit renders the reliefs sought against them invalid.
He relied on Uzodinma v. Udenwa (2004) 1 NWLR (Pt. 854) 303; Maikori v. Lere (1992) 4 NWLR (231) 525; Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355.
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On issue two, learned senior counsel for the Cross Appellant argued that the specific relief claimed in the Statement of Claim, at paragraph 36(iv) is based on an act which occurred on October 2nd, 2009 and that the Cross Respondent?s failure to commence an action against the Respondents in the main appeal until October 24th, 2011, renders he action statute barred, as it is outside the 3 months within which such an action could be bought against public officers.
He relied on the following:
Section 2 Public Officers Act; Amusan v. Obideyi (2000) 15 WRN pg 9; Ajayi v. Adebiyi (2012) 11 NWLR, 137 at 146 (pp. 169-170) paras D-A; Adeosun v. Jibesin (2001) 11 NWLR Pt. 724 pg. 29; Eboigbe v. NNPC (1994) 5 NWLR (Pt. 348) 659; Ezerebo v. IGP & 2 Ors (2009) 11 NWLR (Pt. 1151) 117; Kasandubu v. Ultimate Petroleum Limited (2008) 7 NWLR (Pt. 1086) pg 274 at 283; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
With regards to issue three, he submitted that a company can only exercise its right to sue upon the resolution of its Board of Directors or shareholders and that the absence of such in the action brought
40
before the lower Court renders the action incompetent and robs the Court of jurisdiction to hear the matter, as no proper party instituted the action before it.
He relied on:
Section 299 of the Companies and Allied Matters Act Cap. C20 LFN 2004; Provincial Highway Chemists (Nig) Ltd v. Umaru & Ors (1986) FHCR 196; Asaboro v. WN Finance Corporation (1974) NCLR 266 at 272-273; Foss v. Harbottle (1843) 2 KB 461; Omisade v. Akande (1987) 2 NWLR 158; Okoya v. Santili (1990) 2 NWLR 203; Plateau State Government v. Crest Hotel & Garden Ltd (2012) LPELR-9794 (CA).
Concerning issue four, the learned senior counsel submitted that the failure of the lower Court to consider the Cross Appellant?s preliminary objection was wrong and constitutes a breach of its fundamental right to fair hearing.
He relied on Afro-Cont. Ltd v. Co-op. Assoc. of Prof. Inc. (2003) 5 NWLR (Pt. 813) 303 pg. 317; Iloegbunam v. Obiora (2012) 4 NWLR (Pt. 1291) 405 at 409 (pp. 444-445, paras H-E); Brawal Shipping (Nig) Ltd v. F.I. Onwadike Co. Ltd (2000) 11 NWLR (Pt. 678) 387 at 403 paras D-F; and Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 pg. 53.
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He then urged this Court to invoke Section 15 of the Court of Appeal Act to grant the reliefs in the Cross Appellant?s preliminary objection.
RESOLUTION
With regards to issue one, there is no gainsaying the settled position of the law that a Court does not make decisions against a person if such person is not made a party or has no opportunity of defending the suit. The Court?s jurisdiction does not extend to determining the fate of someone or a matter concerning him when such person is not made a party to the action.
See: OYEYEMI & ORS v. OWOEYE & ANOR (2017) LPELR-41903(SC) (Pp. 48-49, Paras. B-A); BA’AGO & ORS v. ATUWO & ORS(2018) LPELR-43864(CA); and INEC v. DPP & ANOR (2015) LPELR-24900(CA).
This means that the part of the reliefs sought at the lower Court which has to do with the Nigerian Deposit Insurance Commission and the Asset Management Company of Nigeria, will of necessity be struck out.
?
On issue two, the law indeed provides a limited time within which persons who have a grouse with public officers regarding the discharge of their functions, can bring an action in Court to address such wrong.
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Section 2 of the Public Officers Protection Act, limits the above stated period to three months. Failure to institute the action within the said time frame would render it statute barred, the implication of which is that the doors of the Court will forever be shut on that matter.
See: IBRAHIM v. LAWAL & ORS (2015) LPELR-24736(SC); TAJUDEEN v. FIRS (2018) LPELR-43856(CA); MAKAAN v. HANGEM & ORS(2018) LPELR-44401(CA); and CBN & ANOR v. MICHAEL(2018) LPELR-44251(CA).
Cross Appellant is alleging that the Cross Respondent?s action at trial was statute barred, but a careful consideration of the facts of this appeal reveals that this is not the case. A look at the Cross Respondent?s claim reveals that the cause of action crystallized on 5th August, 2011, whereas the action was commenced in October, 2011. Thus the action was clearly commenced within three months of the cause of action. It cannot therefore be said that the action was statute barred.
?
Concerning issue three, the law with regards to who can sue when a wrong has been committed against the company, is clear and to the effect that it is the company acting through the
43
Board of Directors or the majority of members at a general meeting, that can sue, except in exceptional circumstances, such as where the rule in Foss v. Harbottle would apply or certain instances in CAMA where the act of a single member can bind the company.
See: Section 299 of the Companies and Allied Matters Act 1990.
The contention of Cross Appellant?s counsel that the failure of the Cross Respondent to furnish the company?s backing for its action points irrevocably to the fact that no such backing exists and robs the Cross Respondent of standing to institute the matter.
See: PLATEAU STATE GOVERNMENT V. CREST HOTEL & GARDEN LTD(2012) LPELR-9794(CA).
There is indeed a sacred duty on a Court of law to pay heed to the case of both parties and address crucial issues raised by them during the course of proceedings.
See: C. N. OKPALA & SONS LTD v. NB PLC (2017) LPELR-43826(SC) (P. 17, Paras. A-F); PAN OCEAN OIL CORP. (NIG) LTD v. FMON (NIG) LTD & ANOR (2018) LPELR-44173(CA); and MEKWUNYE v. LOTUS CAPITAL LTD & ORS (2018) LPELR-45546(CA).
A look at the ruling of the lower Court reveals that the Court indeed
44
ignored certain aspects of the Cross Appellant?s preliminary objection, which ought to have been duly considered.
The 3rd Respondents Cross Appeal also succeeds in part.
In summation I find no merit in the main appeal and same is hereby dismissed. The Cross Appeal of the 1st Respondent and the 3rd Respondent succeeds in part and the suit filed by the Appellant/Cross Respondent in the lower Court is hereby struck out for being incompetent.
TOM SHAIBU YAKUBU, J.C.A.: My Lord, JAMILU YAMMAMA TUKUR, JCA, resolved all the issues thrown up in this appeal to my satisfaction. Let me just chip in a word with the non-consideration fully of the Cross- Appellant?s Preliminary Objection, by the learned trial judge. The law has remained well settled to the effect that where any application whether by way of a motion on notice or vide a preliminary objection, which had been properly placed before the Court, the same must be considered and determined by the Court.
Therefore, the Court, in its adjudicatory role, must consider and determine such a matter duly placed before it by due process of law, whether it is foolish
45
or childish and a failure to consider and determine such a matter, is tantamount to a denial of fair hearing to the party who made the application and is consequently and adversely attached by the Court?s judgment. Dingyadi V. Independent National Electoral Commission & Ors (No. 2) (2010) 18 NWLR (pt. 852) 346; (2003) 12 SCNJ 206 @ 238; NALSA & Team Associates V. Nigerian National Petroleum Corporation (1991) LPELR – 1935 (SC); (1991) 8 NWLR (pt. 212) 652 @ 676.
Therefore, in the instant case, I find merit in the 3rd Respondent?s Cross-appeal and it is allowed in part. However, the main appeal has no merit and it is accordingly dismissed.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the leading judgment of my learned brother, JAMILU YAMMAMA TUKUR JCA, wherein he dismissed the main appeal and allowed in part, the 1st and 3rd Respondents? Cross Appeal.
I agree with the comprehensive analysis of the issues thrown up for resolution both in the main appeal and the cross appeals of both the 1st and 3rd Respondents respectively.
?I really do not have any other useful thing
46
to add to the well articulated leading judgment.
I too agree that the main appeal be dismissed and to allow the 1st and 3rd Respondents? Cross Appeals in part, and that the suit commenced in the lower Court, not having been shown to have been instituted on the authority of the Appellant?s Board of Directors or by a resolution by majority of its shareholders at a general meeting, was incompetent and its liable to being struck out.
The appeal is dismissed.
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Appearances:
For Appellant(s)
Aanu Ogunno for 1st Respondent/Cross Appellant.
Ephriam Ajijola for 2nd Respondent.
M.A. Sowumi with him, A. Yusuf and S. Belonwu for 3rd Respondent/Cross AppellantFor Respondent(s)
Appearances
For Appellant
AND
Aanu Ogunno for 1st Respondent/Cross Appellant.
Ephriam Ajijola for 2nd Respondent.
M.A. Sowumi with him, A. Yusuf and S. Belonwu for 3rd Respondent/Cross AppellantFor Respondent
