CHUKWUKELO & ORS v. FIDELITY BANK NIG. PLC & ORS (2020)

CHUKWUKELO & ORS v. FIDELITY BANK NIG. PLC & ORS

(2020)LCN/14784(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/L/53M/2009

RATIO

BRIEF: PURPOSE OF A REPLY BRIEF

Let me post-haste state that it is not proper to use a Reply Brief to extend the scope of argument and submissions in the Appellant’s brief. The purpose of a reply brief as stipulated in Order 19 Rule 5 (1) of the Court of Appeal Rules is to reply to new points arising from the Respondents’ Brief. Repeating submissions already made in an Appellants’ Brief in the reply brief will not improve the quality of the argument, add any value to it or make it acceptable, if it were ordinarily unacceptable. In the circumstances, I will in the course of this judgment, discountenance with any submissions in the Appellants’ Reply Brief which does not constitute a reply to new points arising from the Respondents’ Brief. See generally FSB INTERNATIONAL BANK vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13, OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580, MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, YANATY PETRO-CHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. PER ANTHONY OGAKWU, J.C.A.

ACTION: EFFECT OF FAILURE OF PROPER PARTIES BEFORE THE COURT

By all odds, the Appellants have rightly submitted that where proper parties are not before the Court, the Court would lack jurisdiction to entertain the matter, and that a company fully wound up and dissolved loses its legal entity vide COTECNA INT’L LTD vs. CHURCHGATE (NIG) LTD (supra) and COMMERCIAL BANK (CREDIT LYONNAIS) NIG LTD vs. OKOTI (supra). PER ANTHONY OGAKWU, J.C.A.

ACTION: IMPORTANCE OF FACTS IN LAW

But I must hasten to state that facts are the arrowhead or fountainhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of context and giving it a general application if it is sought to apply the decision to totally different facts. As stated by Oputa, JSC in ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.
…Court’s decisions and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.”
Therefore, the principle laid down in the cases relied upon by the Appellants will only be applicable where the diacritical facts of this matter are the same as the facts that induced the decision in the said cases, due regard being had to the constitution of the action and the parties before the lower Court. Hear Oputa, JSC in FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650:
“Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even then, merely as a guide. What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principle or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.” PER ANTHONY OGAKWU, J.C.A.

COURT: WHEN WILL A COURT BE COMPETENT

In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED (2006) All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16. PER ANTHONY OGAKWU, J.C.A.
CONTRACT: BINDINGNESS OF AN AGREEMENT ON PARTIES

It is abecedarian law that parties are bound by the agreement they enter into and the duty of the Court is to interpret the terms of the agreement to reflect the intention of the parties and give effect to the same: UNION BANK vs. OZIGI (1994) 3 NWLR (PT 333) 385, YADIS (NIG) LTD vs. GREAT NIG INS.CO LTD (2007) LPELR (3507) 1 at 25 and A.G FERRERO & CO LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR (12) 1 at 17-18. PER ANTHONY OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. MR. FRANCIS CHUKWUKELO 2. CHIEF RAYMOND CHUKWUKELO 3. HYCENT CHUKWUKELO APPELANT(S)

And

FIDELITY BANK NIGERIA PLC (Substituted Manny Bank Nigeria Plc, By Order Of The Court Made On 13th Of June 2011) 2. CHIEF LOUIS AZODE (Receiver/Manager Over C. Tempo International Company Nig. Ltd) 3. C. TEMPO INTERNATIONAL COMPANY NIGERIA LIMITED RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering The Leading Judgment): The 3rd Respondent, C. Tempo International Company Limited was a customer of the 1st Respondent’s precursor, Manny Bank Nigeria PLC. The Appellants are Directors of the 3rd Respondent Company. In the course of normal banking relationship, Manny Bank offered overdraft facilities to the 3rd Respondent. Among the conditions precedent to the drawdown of the facilities, the 3rd Respondent was required to execute a Deed of Debenture in favour of Manny Bank. In this wise, an All Assets Debenture was duly executed in favour of Manny Bank. The Deed of Debenture, inter alia, gave Manny Bank the power to appoint a Receiver/Manager for the 3rd Respondent where there is a default in repayment of the overdraft facilities.

The 3rd Defendant defaulted in repayment of the facilities and in exercise of its powers under the Deed of Debenture, Manny Bank appointed the 2nd Respondent as the Receiver/Manager for the 3rd Respondent. Thereafter, Manny Bank instituted an action by Originating Summons before the Federal High Court, Lagos Division in SUIT NO.

FHC/L/CS/1240/2005: MANNY BANK NIGERIA PLC & ORS. vs. MR. FRANCIS CHUKWUKELO & ORS, for the following reliefs:
“1. AN ORDER authorizing and/or directing the 2nd Plaintiff/Applicant as Receiver/Manager to exercise and/or continue to exercise any and all the powers, duties and functions conferred on him as Receiver/Manager appointed by the 1st Plaintiff over the assets and undertakings of the 3rd Plaintiff by virtue of the Deed of All Assets Debenture dated 25/6/2002 for the purpose of realizing the debt and other sums due from the 3rd Plaintiff to the 1st Plaintiff and/or other verified creditors of the 3rd Plaintiff.
2. A PERPETUAL INJUNCTION restraining the 1st, 2nd and 3rd Defendants, their servants, agents, privies, employees or any other persons whomsoever from interfering with, obstructing, disturbing, and/or frustrating the 2nd Plaintiff from exercising the powers, duties, and functions vested in him as the Receiver/Manager over the entire assets and undertakings of the 3rd Plaintiff until the debt due from the 3rd Plaintiff to the 1st Plaintiff is fully realized.
3. AN ORDER directing the Commissioner of Police for

Lagos State, or his Deputies, Assistants, Officers, and men to assist and/or continue to assist the 2nd Plaintiff/Applicant in the exercise of his statutory functions and duties as RECEIVER/MANAGER over the assets and undertakings of the 3rd Plaintiff’s company and to forestall any breach of the Law and order in the exercise of the receivership.”

The action was duly contested. While the action was pending at the lower Court, Manny Bank was dissolved and all its assets, rights, liabilities and undertakings were inherited by Fidelity Bank PLC, the 1st Respondent on record; pursuant to an order of the Federal High Court made on 23rd December 2005. Notwithstanding this dissolution and transmission of interest, the action continued at the lower Court up till judgment with Manny Bank remaining on record as the 1st Plaintiff.

In its judgment, the lower Court, Coram Judice: Tijjani Abubakar, J. [now JSC], granted the reliefs claimed on the Originating Summons. The Appellants, who were the defendants at the lower Court, were dissatisfied with the judgment of the lower Court and appealed against the same. The chafed judgment of the lower Court

which was delivered on 19th March 2008 is at pages 597-600 of Volume II of the Records while the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 1st November 2013, pursuant to the order of this Court made on 30th October 2013.

The two volume Records of Appeal were compiled and transmitted, and the appeal having been entered, this Court upon the application of the Appellants made an order on 13th June 2011 for Fidelity Bank Nigeria PLC to be substituted for Manny Bank Nigeria PLC. The parties filed and exchanged briefs of argument which they adopted and relied upon at the hearing of the appeal in urging the Court to uphold their respective submissions in the determination of the appeal. The Appellants’ Brief was filed on 6th January 2014 but deemed as properly filed on 3rd July 2019. The Respondents’ Brief was filed on 14th September 2020 and the Appellants’ Reply Brief was filed on 21st September 2020. The Respondents’ Brief and the Appellants Reply Brief were both deemed as properly filed on 29th September 2020.

Let me post-haste state that it is not proper to use a Reply Brief

to extend the scope of argument and submissions in the Appellant’s brief. The purpose of a reply brief as stipulated in Order 19 Rule 5 (1) of the Court of Appeal Rules is to reply to new points arising from the Respondents’ Brief. Repeating submissions already made in an Appellants’ Brief in the reply brief will not improve the quality of the argument, add any value to it or make it acceptable, if it were ordinarily unacceptable. In the circumstances, I will in the course of this judgment, discountenance with any submissions in the Appellants’ Reply Brief which does not constitute a reply to new points arising from the Respondents’ Brief. See generally FSB INTERNATIONAL BANK vs. IMANO NIG LTD (2000) 7 SCNJ 65 at 70, MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13, OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580, MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, YANATY PETRO-CHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11.

The Appellants formulated four

issues for determination, namely:
“(1) Whether the dissolution of the 1st Plaintiff, Manny Bank Nigeria Plc by an order of a Federal High Court made on the 23rd of December 2005 and during the pendency of this suit at the lower Court does not amount to the death of the first Plaintiff which robbed the Honourable Trial Court of jurisdiction to hear and deliver judgment in this Suit as the 1st Plaintiff was not substituted with an appropriate and competent Plaintiff – Ground 5 of the Grounds of Appeal.
(2) Whether the 1st Plaintiff/Respondent has an alternative remedy in law under the contract of the overdraft facility between it and the 3rd Respondent which the 1st Plaintiff/Respondent ought to have first exhausted before resorting to an equitable relief of appointment of a Receiver/Manager which would eventually ground the business undertakings of the 3rd Respondent – Grounds 4 & 6 of the Grounds of Appeal.
(3) Whether the Deed of All Assets Debenture dated 25th day June 2002, which was the instrument upon which the appointment of the 2nd Respondent as Receiver/Manager of the business undertakings and assets of the 3rd

Respondent was predicated is valid in law. Ground 3 of the Grounds of Appeal.
(4) Whether the Trial Court was right when it held that the action of the Respondents succeeds without determining and resolving, upon the facts proffered by the Appellants, the issue of whether the 3rd Respondent is actually indebted to the 1st Plaintiff/Respondent which was one of the issues placed before the Honourable Trial Court by the Appellants – Grounds 1 and 2 of the Grounds of Appeal.”

The Respondents equally distilled four issues for determination, as follows:
“1. WHETHER THE FAILURE TO SUBSTITUTE THE NAME OF THE 1ST RESPONDENT (THEN MANNY BANK NIGERIA PLC) AT THE LOWER COURT CAN RENDER THE JUDGMENT OF THE LOWER COURT A NULLITY. (Ground 5 of the Grounds of Appeal)
2. WHETHER THE ‘ALL ASSETS DEBENTURES DATED 25TH JUNE, 2005’ FORMED PART OF THE COLLATERAL GIVEN BY 3RD RESPONDENTS IN FAVOUR OF THE 1ST RESPONDENT FOR THE OVERDRAFT FACILITY GRANTED TO THE 3RD RESPONDENT AND PURSUANT TO WHICH THE 2ND RESPONDENT WAS APPOINTED RECEIVER MANAGER OVER THE ASSETS OF THE 3RD RESPONDENTS. (Ground 3 & 4 of the Grounds of Appeal)
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WHETHER THE ALL ASSETS DEBENTURE DATED 25TH JUNE 2002 IS VALID IN LAW. (Ground 2 of the Grounds of Appeal)
4. WHETHER THE TRIAL COURT PROPERLY CONSIDERED ALL THE FACTS AND EVIDENCE GIVEN IN THIS CASE BEFORE ARRIVING AT ITS DECISION. (Ground 1 & 5 of the Grounds of Appeal).”

The issues distilled by the parties are the same in their true essence and purport. I will therefore consider and resolve this appeal based on the issues as crafted by the Appellants.

ISSUE NUMBER ONE
Whether the dissolution of the 1st Plaintiff, Manny Bank Nigeria Plc by an order of a Federal High Court made on the 23rd of December 2005 and during the pendency of this suit at the lower Court does not amount to the death of the first Plaintiff which robbed the Honourable Trial Court of jurisdiction to hear and deliver judgment in this Suit as the 1st Plaintiff was not substituted with an appropriate and competent Plaintiff

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that Manny Bank, the 1st Plaintiff at the lower Court was dissolved by an order of the Federal High Court and all its rights, assets, liabilities and

undertakings, including the account of the 3rd Respondent were inherited by Fidelity Bank, the 1st Respondent in this appeal. It was stated that the dissolution of Manny Bank equiparated to the death of the bank and that it was not substituted before the lower Court delivered its judgment in the matter. The cases of PROGRESS BANK OF NIG PLC vs. O.K. CONTACT POINT HOLDINGS LTD (2008) 1 NWLR (PT 1069) 514 at 531, COMMERCIAL BANK (CREDIT LYONNAIS) NIG LTD vs. OKOTI (2009) 5 NWLR (PT 1135) 446 at 461 and NZOM vs. JINADU (1987) 1 NWLR (PT 51) 533 were referred to.

It was asserted that Manny Bank having been dissolved, no longer had legal personality and could no longer sue or be sued. It was opined that Manny Bank being the necessary and indispensable party to which obligation was owed vide YUSUF vs. ADEYEMI (2009) 15 NWLR (PT 1165) 616 at 629-630, and not having been substituted; that the question in the action could not be effectively resolved without it and any decision given without Manny Bank being substituted was ineffectual as the lower Court no longer had jurisdiction in the absence of the proper parties. The cases of AKUMOJU vs. MASADOLORUN (1991)

9 NWLR (PT 214) 236 at 242, COTECNA INT’L LTD vs. CHURCHGATE (NIG) LTD (2010) 18 NWLR (PT 1225) 346 at 396-397, OBIUWEUBI vs. CBN (2011) 7 NWLR (PT 1247) 465, GOODWILL & TRUST INVESTMENT LTD vs. WITT & BUSCH LTD (2011) 8 NWLR (PT 1250) 500 and BITUMI vs. FANTAMI (1998) 13 NWLR (PT 580) 264 were relied upon.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the failure to substitute Manny Bank was not a feature which divested the lower Court of jurisdiction or which rendered the judgment of the lower Court a nullity. The meaning and purpose of substitute as stated in LAU vs. PDP (2017) LPELR- 420800 (SC) page 38, PERETU vs. GARIGA (2012) LPELR-15534 (SC), IN RE: APEH (2017) LPELR-42035 (SC) pg 18 and INSIDER COMMUNICATIONS LTD vs. CITIBANK (2019) LPELR-47005 (CA) pages 14-16 were called in aid. It was contended that a company is finally dead when it is completely wound up and that the withdrawal of a banking license does not bring the corporate existence of a company to an end. The cases of APC vs. INEC (2015) 8 NWLR (PT 1462) 531 or (2014) LPELR-24036 (SC) pages 27-28 and OREDOLA OKEYA TRADING CO. vs. BCCI LTD

(2014) LPELR-22011 (SC) pages 37-39 were cited in support.

It was posited that the Order of the Federal High Court sanctioning the scheme of merger between three banks was clear that Manny Bank was not wound up and that all rights, assets, liabilities and undertakings of Manny Bank were transferred to Fidelity Bank which shall continue legal proceedings involving Manny Bank. It was opined, that the Appellants, being aware of the merger order, could have also applied for Fidelity Bank to substitute Manny Bank vide Order 9 Rules 15 & 16 of the Federal High Court (Civil Procedure) Rules, 2019 and the case of SAPO vs. SUNMONU (2010) LPELR-3015 (SC) page 12 or (2000) 11 NWLR (PT 1205) 374.

The Respondents further submit that an application for substitution can be made even after judgment and that misjoinder or non-joinder of a party cannot defeat proceedings and so the failure to substitute did not deprive the lower court of jurisdiction – Order 9 Rule 14 of the Federal High Court (Civil Procedure) Rules 2019 and the cases of OREDOLA OKEYA TRADING CO vs. BCCI LTD (supra) at 25, OPEBIYI vs. OSHOBOJA (1976) LPELR-2749

(SC) pages 6-7 and CBN vs. IGWILLO (2007) 14 NWLR (PT 1054) 393 were referred to. It was further contended that the order of this Court of 13th June 2011 substituting Fidelity Bank for Manny Bank, had made the issue academic and one which the Courts do not engage in, relying on GLOBAL TRANSPORT OCEANICO S. A. vs. FREE ENTERPRISES (NIG) LTD (2001) LPELR-1324 (SC) 19-20.

The Respondents argue that Manny Bank was only one of the three Plaintiffs before the lower Court and that the other Plaintiffs were proper parties and that the principal reliefs claimed were in favour of the 2nd Respondent vide NWAVU vs. OKOYE (2008) LPELR-2116 (SC) page 43. The Respondents referred to the cases of INTERCONTRACTORS NIG LTD vs. UAC (1988) 2 NWLR (PT 76) 280 at 292, MANDILAS & KARABERIS LTD vs. ANGLO CANADIAN CEMENT CO LTD (1967) 1 ALR Comm at 42 on when a receiver can be appointed and Sections 390 and 392 of the Companies and Allied Matters Act, Act on the procedure upon the appointment of a receiver and conclusively submitted that if there was no proper Plaintiff at the lower Court as contended by the Appellants, then there is no proper appeal

since the Notice of Appeal was filed against Manny Bank in 2009, after, as claimed by the Appellants, it had died in 2005.

RESOLUTION OF ISSUE NUMBER ONE
By all odds, the Appellants have rightly submitted that where proper parties are not before the Court, the Court would lack jurisdiction to entertain the matter, and that a company fully wound up and dissolved loses its legal entity vide COTECNA INT’L LTD vs. CHURCHGATE (NIG) LTD (supra) and COMMERCIAL BANK (CREDIT LYONNAIS) NIG LTD vs. OKOTI (supra). But I must hasten to state that facts are the arrowhead or fountainhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of context and giving it a general application if it is sought to apply the decision to totally different facts. As stated by Oputa, JSC in ADEGOKE MOTORS LTD vs. ADESANYA (1989) 5 SC 92 at 100:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to

consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.
…Court’s decisions and pronouncement derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and as presented.”
Therefore, the principle laid down in the cases relied upon by the Appellants will only be applicable where the diacritical facts of this matter are the same as the facts that induced the decision in the said cases, due regard

being had to the constitution of the action and the parties before the lower Court. Hear Oputa, JSC in FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650:
“Our law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issues for decision. Once made, these decisions control future judgments of the Courts in like or similar cases. The facts of two cases must either be the same or at least similar before the decision in the earlier case can be used in a later case, and even then, merely as a guide. What the earlier decision establishes is only a principle, not a rule. Rules operate in an all or nothing dimension. Principles do not. They merely incline decisions one way or the other. They form a principle or a starting point. Where one ultimately lands from that starting point will largely depend on the peculiar facts and circumstances of the case in hand.”

In the prolegomenon, I redacted the facts of this matter stating that upon the default by the 3rd Respondent in making repayment on the overdraft facilities granted to it, Manny

Bank exercised its rights and powers under the All Assets Debenture and appointed a Receiver/Manager for the 3rd Respondent. From the reliefs claimed, which I have already set out, it is clear that the cause of action at the lower Court was in order to secure the smooth functioning of the duties and powers of the receiver/manager appointed by Manny Bank for the 3rd Respondent.
There were three Plaintiffs before the lower Court. Manny Bank was only one of the three Plaintiffs. If, arguendo, Manny Bank had lost its legal personality as a result of the scheme of merger, the critical question is whether the other two Plaintiffs, who it has not been confuted have juristic capacity, could have continued the action even with the arguable demise of Manny Bank. The Appellants argue that Manny Bank was a necessary or indispensable party in whose absence the question in the action cannot be effectively and completely resolved. In order to ascertain this, it is the reliefs claimed, which is the cynosure of the action that will be key to resolving this knotty question.
It has to be remembered that prior to the institution of the action at the lower Court, Manny

Bank had in exercise of its powers under the All Assets Debenture appointed the 2nd Respondent as the Receiver/Manager for the 3rd Respondent. I have already set out the reliefs claimed in the action. It is as clear as crystal that all the reliefs claimed are aimed for the benefit of the 2nd Respondent, the Receiver/Manager, and directed at his being afforded the freedom to exercise the powers, duties and functions of Receiver/Manager of the 3rd Respondent and the said reliefs enured to his favour; so if there was a necessary or indispensable party in the action, it was the 2nd Respondent and to a lesser extent, the 3rd Respondent, the company whose affairs the 2nd Respondent was to manage as Receiver/Manager, and definitely not Manny Bank.
Concomitantly, without conceding that Manny Bank lost its legal personality by virtue of the order of the Federal High Court in respect of the scheme of merger; which I do not concede because the order is explicit that Manny Bank would be dissolved without being wound up, the fact that Manny Bank was not substituted did not impact on the jurisdiction of the lower Court as the 2nd and 3rd Respondents

(the other two Plaintiffs), based on the reliefs claimed, were in a position to sustain, and did indeed sustain and continue the action. It is important to underscore that in the case of COMMERCIAL BANK (CREDIT LYONNAIS) NIG LTD vs. OKOTI (supra) relied upon by the Appellants; it was held that a company that is fully wound up and dissolved loses its legal entity. I iterate that the order of the Federal High Court on the scheme of merger was for the dissolution of Manny Bank “without being wound up.” The necessary implication is that not having been wound up, Manny Bank still retained its legal personality as a legal entity; and not having been substituted, it did not affect the vires of the lower court to continue to exercise jurisdiction in the matter.
In the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) ALL NLR 587 at 595 the apex Court stated as follows:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its

jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in the competence of the Court is fatal and the proceedings however well conducted and decided are a nullity as such defect is extrinsic to the adjudication.”
The law would appear to be settled that the competence of a Court and its jurisdiction to exercise its adjudicatory powers in respect of a matter before it are intervolved. A Court could have the jurisdiction in respect of the subject matter, but lack the competence thereby vitiating the effect of the jurisdiction it has. Jurisdiction and competence of a Court are complementary. They go hand in hand and are dependent on each other. In order to be properly seised of a matter, a Court must have both jurisdiction and competence. Competence of the Court is the handmaiden of the jurisdiction of the Court. See IBEANU vs. OGBEIDE (1994) 7 NWLR (PT 359) 697 at 700-701, COTECNA INTERNATIONAL LIMITED vs. IVORY MERCHANT BANK LIMITED (2006)

All FWLR (PT 315) 26 at 43 and SOKOTO STATE GOVT vs. KAMDEX NIG. LTD (2007) LPELR (3093) 1 at 16.
The subject matter of the action was within the jurisdiction of the lower Court. The case was initiated by due process of the law and there was no feature which prevented the lower Court from exercising jurisdiction. Ineluctably, this issue number one must be resolved against the Appellants. The lower Court was competent and imbued with the requisite jurisdiction to hear and deliver judgment in the matter, irrespective of whether Manny Bank was substituted as a party or not.

ISSUE NUMBER TWO
Whether the 1st Plaintiff/Respondent has an alternative remedy in law under the contract of the overdraft facility between it and the 3rd Respondent which the 1st Plaintiff/Respondent ought to have first exhausted before resorting to an equitable relief of appointment of a Receiver/Manager which would eventually ground the business undertakings of 3rd Respondent

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the contract of overdraft facility offered a legal remedy in the properties used as collateral for the

facility, which remedy had to be exhausted before recourse to the equitable remedy of appointment of a receiver vide UWAKWE vs. ODOGWU (1989) 5 NWLR (PT 123) 562 at 576 and 579. It was maintained that the properties used as collateral afforded adequate legal remedy which had to be exhausted before resort to any equitable relief. The case of PONSON ENTERPRISES NIGERIA LTD vs. NJIGHA (2000) 15 NWLR (PT 689) 46 at 58 and 61-62 was referred to. It was conclusively submitted that the decision of the lower Court empowering/appointing a receiver when the legal remedies at common law had not been exhausted was improper.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
It is the Respondents’ submission that the offer letters for the overdraft facility provided that repayment of the overdraft would be from the 3rd Respondent’s cash flow and collateral such as buildings, debenture and personal guarantee of the 1st Appellant. It was asserted that there was no stipulation that in the case of default, that the right of the Respondents should be limited to part of the securities. It was maintained that all the securities were available for the

Respondents to exercise their rights upon in the event of a default.

It was further submitted that where the words of a contract are plain and clear, the Court is to interpret them to give effect to the wishes of the parties as expressed in the contract vide ADETOUN OLADEJI (NIG) LTD vs. NIGERIA BREWERIES PLC (2007) LPELR-160 (SC) page 14 and UNION BANK vs. OZIGI (1994) LPELR-3389 (SC) page 24. It was contended that the receiver was appointed by the Respondents pursuant to the Deed of Debenture and that the decision of the lower Court was to grant administrative and judicial protection for the 2nd Respondent, as Receiver/Manager to exercise his functions and duties. It was opined that the Respondents had the unfettered discretion to choose the best of the recovery options open to them in the event of default. The case of EUROPEAN SOAPS & DETERGENT LTD vs. MW BEER & CO LTD (2017) LPELR 41873 (CA) pages 21-22, FOLORUNSHO vs. ROSULA (NIG) LTD (2019) LPELR-47339 (CA) at pages 26-33 and Sections 208 and 209 of the Companies and Allied Matters Act were called in aid. It was conclusively submitted that the 2nd Respondent was appointed Receiver/Manager

pursuant to the Debenture, and not being a Court appointed Receiver/Manager, his appointment cannot be considered an equitable remedy. The cases of INTERCONTRACTORS vs. UAC (supra) and UBA TRUSTEES LTD vs. NIGERGROB CERAMICS LTD (1987) 3 NWLR (PT 62) 600 were cited in support.

RESOLUTION OF ISSUE NUMBER TWO
The contract of offer of overdraft facility by Manny Bank to the 3rd Respondent is attached as Exhibits 2a and 2b to the Originating Summons. By the said contract, the collaterals for the overdraft facility are legal mortgage in respect of two properties, All Assets Debenture on the assets of the 3rd Respondent and the Personal Guarantee of the 1st Appellant. It was agreed under the contracts that where the 3rd Respondent is unable to pay its debts to Manny Bank that all the amount outstanding under the facility shall be immediately payable. The Appellants, as Directors of the 3rd Respondent, duly executed the All Assets Debenture in favour of Manny Bank. The said All Assets Debenture is attached as Exhibit 3 to the affidavit in support of the Originating Summons. Under the All Assets Debenture, which was duly registered with the Corporate

Affairs Commission as required by law, Manny Bank was given the statutory power to appoint a Receiver for the 3rd Respondent where the 3rd Respondent is unable to pay the amounts due on the facility. By the provisions of Sections 208 and 209 of the Companies and Allied Matters Act, 1990, a debenture holder, in this instance, Manny Bank, has the statutory power to appoint a Receiver where there is a default in the payment of the facility secured by the debenture.
The stipulation of the contract of offer of overdraft facility and the All Assets Debenture are univocal and unambiguous. They do not require any aid to construction; they are to be given their literal meaning: ADEJUMO vs. AGUMAGU (2015) 12 NWLR (PT 1472) 1. They are to be accorded their plain, ordinary and natural grammatical meaning vide UTOMUDO vs. MILITARY GOVERNOR OF BENDEL STATE (2014) 47 WRN 1 and UGWU vs. ARARUME (2007) 31 WRN 1. When this is done, as I am enjoined by law to do, it becomes limpid that upon the 3rd Respondent defaulting in making repayment on the facility, it became open to Manny Bank to call in the entire facility and to exercise the statutory power conferred upon it by

the All Assets Debenture to appoint a receiver; which it did.
The Appellants labour under the misconception that the appointment of the Receiver was pursuant to the order of the lower Court, consequent upon which they argue that the legal remedies of recourse to the mortgaged properties should have been exhausted before pursuing the equitable remedy of an order of Court for a receiver to be appointed. No. The Receiver/Manager was appointed in exercise of the power given to Manny Bank in the All Assets Debenture and which has statutory backing in the provisions of Sections 208 and 209 of the Companies and Allied Matters Act, 1990. The fact of this appointment of a Receiver is evident from the deposition in paragraph 17 of the affidavit in support of the Originating Summons and Exhibit 9 attached thereto. It is pertinent to state that the contracts in the offer for overdraft facility did not stipulate any order in which Manny Bank can have recourse to the collaterals, in the event of a default. It is an established principle of law arising from the logic of reasoning that where there is a misconception as to the nature of the issues at stake in a matter,

then in all probability, a wrong contention will invariably be proffered as a result of the said misconception: UDENGWU vs. UZUEGBU (2003) 13 NWLR (PT 836) 136 at 152 and LADEJOBI vs. OGUNTAYO (2004) 7 SC (PT I) 159 at 169. It is premised on this misconception that the Appellants have made the fine legal points that the lower Court was wrong to have granted the equitable relief for the appointment of a receiver when the available legal remedies had not been exhausted.
At the risk of prolixity, the Receiver was appointed based on the exercise of the statutory power agreed upon by the parties and conferred on Manny Bank in the All Assets Debenture. The action at the lower Court was not for the appointment of a receiver, which appointment had already been accomplished and done before the action was filed. The action was all about securing an order of the Court to ensure the smooth operations of the Receiver without any hindrance. It is abecedarian law that parties are bound by the agreement they enter into and the duty of the Court is to interpret the terms of the agreement to reflect the intention of the parties and give effect to the same: UNION BANK vs. OZIGI

(1994) 3 NWLR (PT 333) 385, YADIS (NIG) LTD vs. GREAT NIG INS.CO LTD (2007) LPELR (3507) 1 at 25 and A.G FERRERO & CO LTD vs. HENKEL CHEMICALS (NIG) LTD (2011) LPELR (12) 1 at 17-18. The lower Court arrived at the correct decision when it entered judgment in favour of the Respondent, thereby giving effect to the agreement of the parties on the power vested in Manny Bank to appoint a Receiver where there is a default by the 3rd Respondent in repaying the facility. This issue is resolved in favour of the Respondents.

ISSUE NUMBER THREE
Whether the Deed of All Assets Debenture dated 25th day June 2002, which was the instrument upon which the appointment of the 2nd Respondent as Receiver/Manager of the business undertakings and assets of the 3rd Respondent was predicated is valid in law.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The quiddity of the Appellants’ submission on the third issue is that the All Assets Debenture on which the appointment of receiver was predicated was invalid and void as it did not comply with the provisions of Sections 168 and 202 of the Companies and Allied Matters Act, 1990. It was posited that

the said provisions were mandatory, the word SHALL, having been employed in the provisions. The cases of NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT 1209) 518 at 589 and AGIP (NIG) LTD vs. AGIP PETROLI INT’L (2010) 5 NWLR (PT 1187) 348 at 419 were referred to. It was asserted that since the Deed of All Assets Debenture was invalid, a Receiver could not have been appointed, based on the said Deed.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents refer to the definition of debenture as given in BREWTECH NIG LTD vs. AKINNAWO (2016) LPELR-40094 at 13-15 and submit that Sections 166-168 of the Companies and Allied Matters Act, 1990 empower a company to create debentures and debenture stock. It was argued that by Section 167 of the Companies and Allied Matters Act, 1990, the obligation to register a debenture with the Corporate Affairs Commission was on the company creating the debenture and that the 3rd Respondent duly registered the debenture with the Corporate Affairs Commission. It was posited that persons dealing with a company need not inquire into the regularity or otherwise of the internal affairs of a company vide

SPASCO VEHICLE AND PLANT HIRE CO LTD vs. ALRAINE (NIG) LTD (1995) LPELR-3110 (SC) at 22 and TRENCO NIG LTD vs. AFRICAN REAL ESTATE AND INVESTMENT COMPANY LTD (1978) LPELR-3264 (SC) at 19-20.

It was therefore opined that any invalidity in the All Assets Debenture, as argued by the Appellants, meant that they deliberately failed to comply with the Companies and Allied Matters Act, 1990. It was further stated that the Court will not allow the Appellants to benefit from their own wrong. The cases of SEED VEST MICROFINANCE BANK PLC vs. OGUNSINA (2016) LPELR-41346 (CA) at 30-31, PDP vs. EZEONWUKA (2017) LPELR-42563 (SC) at 105, CIVIL DESIGN CONSTRUCTION (NIG) LTD vs. SCOA (NIG) LTD (2007) LPELR-870 or (2007) 6 NWLR (PT 1030) 78, OKECHUKWU vs. ONUORAH (2000) LPELR-2431 (SC) or (2000) 15 NWLR (PT 691) 591, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR-40598 (SC) at 91 or (2016) 13 NWLR (PT 1529) 206 and EMESPO J. CONTINENTAL LTD vs. AUTOMOTOR FRANCE S.A. (2016) LPELR-42232 (CA) at 35-36 were relied upon.

APPELLANTS’ REPLY ON LAW
In the Reply Brief, the Appellants submit that where a statute outlines a method for doing an act, no other method can be

resorted to vide NWANKWO vs. YAR’ADUA (supra) at 559. It was iterated that the All Assets Debenture was prepared by Manny Bank for the Appellants to sign and that not having complied with the provisions of Sections 168, 197 and 202 of the Companies and Allied Matters Act, 1990, the Deed was invalid and inoperative.

RESOLUTION OF ISSUE NUMBER THREE
The Appellants’ contention as to the invalidity of the Deed of Debenture is that the principal amount borrowed; the maximum discount which may be allowed on issue or re-issue of the debentures; maximum premium at which the debentures may be redeemable; rates and dates on which the interest on the debenture shall be paid and manner of payment and date when the principal amount shall be repaid or manner of redemption; were not stated in the All Assets Debenture as required by Sections 168, 197 and 202 of the Companies and Allied Matters Act, 1990. By the provisions of Section 166 of the Companies and Allied Matters Act, 1990, a company may borrow money for its business and issue debentures as security for the money borrowed. The Appellants, as Directors of the 3rd Respondent, took the overdraft

facility from Manny Bank and issued the All Assets Debenture in favour of Manny Bank. Furthermore, as required by the Companies and Allied Matters Act, 1990, the debenture was duly registered with the Corporate Affairs Commission. See Sections 197, 198 (2) and 203 (1) of the Companies and Allied Matters Act, 1990. The said Certificate of Registration is attached as Exhibit 4 to the affidavit in support of the Originating Summons.
Section 168 of the Evidence Act, 2011 enacts a presumption of regularity in respect of judicial and official acts. The presumption is expressed in the Latinism omnia praesumuntur rite et solemniter esse acta donec probetur in contrarim, which is more often shortened as omnia praesumuntur rite esse acta. It means that everything is presumed to be rightly done until the contrary is shown. See NDUKWE vs. LPDC (2007) LPELR (1978) 1 at 63 and ANYAEGBUNAM vs. ANYAEGBUNAM (1973) LPELR (507) 1 at 15. The fact of registration of the All Assets Debenture by the Corporate Affairs Commission vide Exhibit 4 of the affidavit in support of the Originating Summons raises the presumption that all legal and statutory requirements for the creation

of the debenture were duly met. In the circumstances, I am unable to agree with the Appellants that the said All Assets Debenture is invalid and inoperative.
Be that as it may, the contract between the parties was for the grant of overdraft facility by Manny Bank to the 3rd Respondent. The facility was granted by Manny Bank. The Appellants, as Directors of the 3rd Respondent, took benefit of, and utilized the facility; but the 3rd Respondent defaulted in repaying the facility. The condition precedent for the drawdown of the overdraft facility included the “Execution of Deed of All Assets Debenture on the Company’s assets.” Exhibit 3 of the affidavit in support of the Originating Summons is the All Assets Debenture executed by the Appellants on behalf of the 3rd Respondent in order to have the benefit of and drawdown on the overdraft facility. Having so taken benefit, it is now contended that the said Deed of All Assets Debenture is invalid and inoperative. I do not think that the Appellants can be heard to so argue as acceding to their argument will not only be unconscionable but also against public policy and will equally be a

perpetration of injustice. The Appellants, having taken benefit under the contract, cannot now make a volte face to contend that the Deed of All Assets Debenture which was an integral part of the contract, and without which they would not have been able to draw down on the facility, is invalid. See OKECHUKWU vs. ONUORAH (2000) 15 NWLR (PT 691) 597 at 610, E. A. INDUSTRIES LTD vs. NERFUND (2009) 8 NWLR (PT 1144) 535 at 592, INYANG vs. EBONG (2002) 2 NWLR (PT 751) 284 at 333-334 and B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 27-28. In splice, this issue number three is resolved against the Appellants.

ISSUE NUMBER FOUR
Whether the Trial Court was right when it held that the action of the Respondents succeeds without determining and resolving, upon the facts proffered by the Appellants, the issue of whether the 3rd Respondent is actually indebted to the 1st Plaintiff/Respondent which was one of the issues placed before the Honourable Trial Court by the Appellants

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The apercu of the Appellants’ submission on issue number four is that the lower Court ought to have made a

finding on the disputed issue of whether the 3rd Respondent was indebted to Manny Bank, since the appointment of a receiver was predicated on the alleged indebtedness. It was maintained that a Court ought to pronounce on all issues raised before it. The cases of DUZU vs. YUNUSA (2010) 10 NWLR (PT 1201) 80 at 120, FEDERAL COLLEGE OF EDUCATION PANKSHIN vs. PUSMUT (2008) 12 NWLR (PT 1101) 405 at 419-420, BRAWAL SHIPPING (NIG) LTD vs. F. I. ONWADIKE CO. LTD (2000) 11 NWLR (PT 678) 387 at 403 and WILSON vs. OSHIN (2000) 9 NWLR (PT 673) 442 at 463 were referred to. It was asserted that a decision reached in disregard of issues raised occasion a miscarriage of justice vide UNIVERSITY OF CALABAR vs. UGOCHUKWU (2007) 17 NWLR (PT 1063) 225 at 269-270. This Court was urged to exercise its power under Section 15 of the Court of Appeal Act and Order 4 Rules 1, 3 & 4 of the Court of Appeal Rules and resolve the issue of the alleged indebtedness. The case of AJAYI vs. MILITARY ADMINISTRATOR OF ONDO STATE (1997) 5 NWLR (PT 504) 237 at 275 was cited in support.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The conspectus of the Respondents’ submission is

that it is the claim/relief before a Court that determines the jurisdiction of the Court and that a Court is bound by the reliefs claimed. The cases of DAIRO vs. UNION BANK (2007) LPELR-913 (SC) at 39, GARBA vs. MOHAMMED (2016) LPELR-40612 (SC), A-G FEDERATION vs. A-G ABIA (2001) LPELR-24862 (SC) pages 142-143 and OAK PENSIONS LTD vs. OLAYINKA (2017) LPELR-43207 (CA) were called in aid. It was asserted that from the reliefs claimed, the issue before the lower Court was not whether the 3rd Respondent was owing or not, but whether the Court would grant its judicial protection to the 2nd Respondent, the Receiver/Manager, to exercise his duties.

It was opined that even though the Appellants filed a counter affidavit, their expert witness on the indebtedness and the Report he prepared were made when proceedings were pending and ought to be discountenanced for being contrary to Section 91 (3) of the Evidence Act. The cases of SOLAR ENERGY ADVANCED POWER SYSTEM LTD vs. OGUNNAIKE (2008) LPELR-8470 CA and ARE vs. IPAYE (1986) 3 NWLR (PT 29) 416 were relied upon. It was further argued that the Appellants’ counter affidavit did not effectively deny the indebtedness

as the Appellants’ contention seemed to be that the legal remedies should be exhausted before pursuing the equitable remedy. It was conclusively submitted that the Appellants should be consistent in stating their case and not approbate and reprobate vide OLIYIDE & SONS LTD vs. OAU, ILE-IFE (2018) LPELR-4371 (SC) pg 15, ISIN vs. EDEM (2018) LPELR-44046 (CA) pg 12 and COMPTROLLER GENERAL OF CUSTOMS vs. GUSAU (2017) LPELR-42081 (SC) pg 17.

RESOLUTION OF ISSUE NUMBER FOUR
It will conduce to the utmost pellucidity if the action which the Respondents brought before the lower Court is properly contextualized. Upon Manny Bank determining that the 3rd Respondent was in default of fulfilling its obligation in the contract of offer of overdraft facility, it exercised its statutory powers under the Deed of Debenture and appointed the 2nd Respondent as Receiver/Manager for the 3rd Respondent. The Deed of Appointment which is dated 1st September 2005, is attached as Exhibit 9 to the affidavit in support of the Originating Summons. About three months after the Receiver/Manager had been appointed, the action was commenced at the lower Court, precisely on

30th November, 2005. I have already set out the reliefs claimed in the action. It is lucent from the said reliefs that there was nothing therein which required the lower Court to determine if the 3rd Respondent was indeed indebted to Manny Bank or not.

The Appellants have erroneously contended that the lower Court ought to have first determined if in fact, there was a debt owed before granting the reliefs claimed for appointment of a receiver. Let me iterate that a Receiver/Manager had been appointed before the action was commenced and from the reliefs claimed the purpose of the action was to ease and aid the discharge of the functions and duties of the Receiver that had been appointed by securing judicial protection for him in the discharge of his functions and duties. This is encapsulated in paragraphs 17-24 of the affidavit in support of the Originating Summons wherein it is deposed as follows:
“17. That in the circumstances, the right of the 1st Plaintiff/Applicant to appoint a Receiver/Manager over the entire assets and undertakings of the 3rd Plaintiff/Applicant’s company has crystallized and become exercisable, and in exercise of

such right the 1st Plaintiff/Applicant has appointed the 2nd Plaintiff/Applicant as Receiver/Manager over the aforesaid assets and undertakings by virtue of a Deed of Appointment dated 1/9/2005 now filed at the corporate Affairs Commission. Copy of the Deed of Appointment is hereto annexed as Exhibit 9.
18. That the substantial assets and undertakings of the 3rd Plaintiff/Applicant are movable chattels, stocks in trade and receivables which can easily be removed, transferred, dissipated, vandalized or even sold and delivered within a very short interval, and it is extremely feared and expected that the 1st, 2nd and 3rd Defendants/Respondents would make disparate efforts to remove, alienate, dissipate or encumber the aforesaid assets, thereby frustrating or hampering the Receivership exercise and evade their financial obligations to the 1st Plaintiff/Applicant and other creditors.
19. That the 1st Plaintiff/Applicant’s discreet investigation so far reveals that some of the 3rd Plaintiff/Applicants assets including motor vehicles, generators, machines and spare parts are about to be removed from the 3rd

Plaintiff/Applicant’s office and warehouse situate at Zone A Block 5 shop 17 Aspamda Trade Fair Complex Lagos and other locations at Trade Fair Complex, Festac Town, and Badagry Lagos to some locations at 131 Adeniyi Adele, Idumota Lagos in readiness for further evacuation.
20. That with the appointment of the 2nd Plaintiff/Applicant as Receiver/Manager over the entire assets and undertakings of the Plaintiff/Applicant’s company, neither of the Defendants as Directors nor their agents, officers, employees, servants, privies et al can validly exercise any legal rights or beneficial interest over the said assets, except as permitted by the 2nd Plaintiff/Applicant.
21. That I verily believe that the Receivership exercise of the 2nd Plaintiff/Applicant would be practically frustrated and jeopardized except the Defendants/Respondents herein are legally restrained from obstructing the efforts of the 2nd Plaintiff/Applicant to assume control and protect the assets of the company in the interest of the Plaintiff/Applicant and other creditors.
22. That the 1st, 2nd and 3rd Defendants/Respondent as Directors of the 3rd Plaintiff

are jointly and severally in control of some employees and thugs among whom are persons of little identity, unpredictable temperament and violent dispositions who would stop at nothing to protect the perceived interest of the 1st, 2nd and 3rd Defendants/Respondents and their patrons against the due process of receivership.
23. That I was informed by UCHE OBI Esquire of counsel and I verily believe him that the 2nd Plaintiff/Applicant as Receiver/Manager is statutorily empowered to take possession and safeguard the assets of the 3rd Plaintiff/Applicant‘s company from harm, and realize the financial interest of the 1st Plaintiff/Applicant and other verifiable creditors, there from.
24. That it is highly feared that the instant Defendants will physically attack the person of the 2nd Defendant [sic] thereby causing a breach of public peace or harm to the said Receiver/Manager to obstruct or prevent the 2nd Plaintiff/Applicant from performing his statutory duties as Receiver/Manager over the charged assets and undertakings of the 3rd Plaintiff/Applicant.”
(See pages 6-7 of Volume I of the Records)

Doubtless, the Appellants in their

counter affidavit deposed that the 3rd Respondent was not indebted to Manny Bank. However, there was no counterclaim, cross action or relief otherwise claimed by the Appellants that the 3rd Respondent was not indebted to Manny Bank. In the absence of such a claim, the lower Court was not obligated to enter a formal decision on whether there was an outstanding debt or not, more so, when a Receiver/Manager had already been appointed and the action before it was not for the appointment of a Court-appointed receiver.
The law as I know it is that the Court and the parties are bound by the reliefs claimed in an action as framed by the Plaintiff/Claimant and it is not the duty of the Court to grant any relief outside what had been claimed. In the words of Tobi, JSC in EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 at 40:
“It is elementary law that a Court is bound by the relief or reliefs sought. The generosity or charity of a Court of law is confined strictly to the relief or reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely

outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, so to say, cannot claim to know the relief or reliefs better than the party…”
See also DUMEZ NIGERIA LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and AKINTERINWA vs. OLADUNJOYE (2000) LPELR (358) 1 at 40 or (2000) 6 NWLR (PT 659) 92.
The Appellants, who though deposed that there was no outstanding indebtedness, did not activate the jurisdiction of the lower Court by way of a cross action, counterclaim or any relief whatsoever, in order for a determination to be made on whether there was any indebtedness or not. It was therefore not the business of the lower Court to make a pronouncement in that regard. In defining the meaning of “claim” in OSUJI vs. EKEOCHA (2009) 16 NWLR (PT 1166) 81 or (2009) LPELR (2816) 1 at 55, Tobi, JSC stated thus:
“A claim, in our adjectival law, originates an action. It is the pivot or the cynosure of the case. It sets out the relief or reliefs sought by the Plaintiff. A Plaintiff is bound by

his claim and must not deviate from it willy-nilly. A Plaintiff cannot in law present a case different from his claim as the law regards such an unsolicited procedure completely outside the law.”
Just as it is elementary that the Plaintiff cannot present a case different from his claim, so also can a Court not adjudicate between parties on the basis of a claim not formulated by them. In OSUJI vs. EKEOCHA (supra) at page 44, Adekeye, JSC stated:
“The position of the law is clear that a Court of law can only grant reliefs claimed by a party and not more. It is trite that a Court is duty bound to adjudicate between the parties on the basis of the claim formulated by them.”
In the absence of a claim or relief for a declaration that there was no outstanding indebtedness, the lower Court was correct in not making any formal pronouncement on the same. The issues for decision in a case are framed by the facts and circumstances in a case and the reliefs claimed. It is hornbook law that a Court is not Santa Claus or a charitable institution and cannot award to a party what it has not claimed. A Court cannot award to a party what he

has not asked for as that would be an unusual charity and goodwill which a Court of law, qua judex, has no jurisdiction and is incompetent to do. If a party does not seek a particular relief in an action in Court, it is not the business of a Court to make a pronouncement and award such a relief. See EKPENYONG vs. NYONG (1975) 2 SC 65 at 73–74 and AJIKAWO vs. ANSALDO NIG. LTD (1991) 2 NWLR (PT 173) 359 at 372. The Appellants’ clamour for a resolution of the issue of whether there is an outstanding debt is an attempt to inveigle the Court into making a declaration that is not part of the reliefs claimed, and since it is not part of the reliefs claimed, there was no evisceration of the Appellants’ right to fair hearing.

Howbeit, the lower Court did make the finding that the Appellants were not in total disagreement with the existence of a debt owed to Manny Bank. Hear the lower Court at page 600 of the Records:
“While Mr. Anyofulu challenged the validity of the all assets debenture, he later said the Receiver has in his custody same [some] properties that are enough to satisfy the debt. The effect of this submission is that

Defendants are not in total disagreement with the existing debt, and same thing [something] in the form of debenture took place between parties.”

The above pericope from the decision of the lower Court may be terse and laconic, but it is an express finding that there is an existing debt, which debt the Appellants did not totally disagree with. From which ever perspective the matter is approached, I am unable to see my way clear in upholding the Appellants’ contention that the lower Court was wrong by not determining whether the 3rd Respondent was actually indebted to Manny Bank before granting the reliefs claimed by the Respondents. This issue number four is accordingly resolved in favour of the Respondents.

CONCLUSION
It seems to me that every blade of grass in the field of this judgment has been groomed and tended. The fate of the appeal is evident from the fact that all the four issues thrust up for determination have been resolved against the Appellants. Nunc Dimittis awaits the appeal. The concatenation and conflating of the foregoing is that there is no whit, iota or scintilla of merit in the appeal. The judgment of the lower

Court, Coram Judice: Tijjani Abubakar, J. (as he then was), [now JSC] delivered on 27th March 2008 is hereby affirmed. The parties are to bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A

EBIOWEI TOBI, J.C.A.: I have been afforded the opportunity of reading the draft leading judgment of my learned brother. Ugochukwu Anthony Ogakwu, JCA., and I agree totally with my lord’s resolution on all the issues raised in this appeal and the conclusion reached. On my part, I have nothing more to add.

Appearances:

C. Anyafulu, Esq. For Appellant(s)

U. Obi, Esq. For Respondent(s)