KEYSTONE BANK LIMITED v. JOHNBOSCO OZIGBU & ORS
(2017)LCN/9839(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of May, 2017
CA/PH/176M/2015(R)
RATIO
APPEAL BY INTERESTED PARTY: STATUTORY PROVISION STATING THE DUTY OF AN INTERESTED PARTY TO AN APPEAL; WHO IS A PERSON HAVING AN INTEREST IN A MATTER
Under Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) any person who did not take part in the proceedings in the Federal High Court or High Court wishing to appeal against the decision as a party interested must obtain leave of Court. The Section provides thus: “Any right of appeal to the Court of Appeal from the decisions of Federal High Court or High Court conferred by this Constitution shall be – (a) Exercisable in the case of civil proceedings at the instance of a party thereto or with the leave of the Federal High or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter …” A person having an interest is a person whose interest is prejudicially affected by the judgment or order of the Court. See In Re Ijelu (1992) 9 NWLR (Pt. 266) 414 at 421. PER JAMES SHEHU ABIRIYI, J.C.A.
EXTENSION OF TIME TO APPEAL: FACTORS THAT WILL BE CONSIDERED BY THE COURT IN GRANTING AN APPLICATION OF EXTENSION OF TIME APPEAL
The granting of extension of time within which to appeal is at the discretion of the Court. And the Court in exercising its discretion will take into consideration certain factors which include the following: 1. The constitutional right of the Applicant to appeal. 2. The reasons for the delay. The affidavit in support of the application must show good and substantial reasons for failure to appeal within the prescribed time. 3. Grounds of appeal which prima facie show good cause why the appeal should be heard. 4. That the justice of the case demands that the appeal should be heard. See Mangraht V. Oduba (2004) 4 NWLR (Pt. 863) 279/287 and Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 554 – 555. PER JAMES SHEHU ABIRIYI, J.C.A.
EXTENSION OF TIME TO APPEAL: WHETHER THE COURT WILL GRANT EXTENSION OF TIME TO APPEAL WHERE THE FAILURE OF THE PARTY TO APPEAL WITHIN THE PRESCRIBED PERIOD WAS CAUSED BY THE NEGLIGENCE OR INADVERTENCE OF COUNSEL
Has the Applicant shown good and satisfactory reasons for the delay in appealing within the time prescribed? It is common ground between the parties that the appeal was ready for hearing when this Court in another appeal Ibeabuchi V. Ikpokpo decided that an appeal filed without payment of adequate filing fees was incompetent. Noticing that this appeal was on the authority of Ibeabuchi V. Ikpokpo incompetent for none payment of adequate filing fees, Applicant applied for the appeal and motions to be struck out. The appeal for this reason was struck out. It was only after the Supreme Court set aside the decision of this Court on the issue of payment of inadequate filing fees that the Applicant was able to approach this Court with this application. Undoubtedly the Applicant should not be punished for the sin of the registry or that of his counsel who did not assess the filing fees correctly. This was a good reason for the delay. Mistake of registry of the Court and counsel is a special circumstance. See Akinpeju V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 555. The Court would readily exercise its discretion to extend time prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by the party to do the act within the prescribed period was caused by the negligence or inadvertence of counsel. From the proposed grounds of appeal Exhibit N, the grounds of appeal contain good, substantial and arguable grounds of appeal. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICE
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
KEYSTONE BANK LIMITED – Appellant(s)
AND
1. JOHNBOSCO OZIGBU
2. MRS. PAT OZIGBU
(Suing and representing the trustee Fund of Ijeoma Ozigbu and Pascal Ozigbu (infants)
3. ECOBANK PLC
4. MRS. NGOZI EDWIN – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Lead Ruling): The instant application brought by Keystone Bank Limited (Applicant) under Order 7 Rules 1, 2 & 10 of the Court of Appeal Rules, 2011, Sections 15 and 24 of the Court of Appeal Act, 2004, Sections 241, 242 and 243 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and under the inherent jurisdiction of this Court is for the following:
1. An Order for the leave of the Honourable Court to make the Applicant a party in the case being a person having interest in the matter pursuant to Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) with regard to the judgment of the Federal High Court delivered by Olotu J in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc. & 2 Ors. by virtue of the Applicant being the legal entity who assumed the assets and liabilities of Bank PHB Plc (formerly known as Platinum Habib Bank Plc.).
2. An Order granting to the Applicant an extension of time within which to seek leave to appeal to the Court of Appeal against the judgment of the
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Federal High Court Port Harcourt Judicial Division presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc. & 2 Ors. delivered on the 20th of July, 2009 as a person interested/party interested in the said suit by virtue of the Applicant being the legal entity who assumed the assets and liabilities of Bank PHB Plc (formerly known as Platinum Habib Bank Plc.).
3. An Order granting leave to the Applicant to appeal to the Court of Appeal against the judgment of the Federal High Court Port Harcourt Judicial Division presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors. delivered on the 20th July, 2009 as a person interested/party interested in the said matter by virtue of being legal entity who assumed the assets and liabilities of Bank PHB Plc. (formerly known as Platinum Habib Bank)
4. An Order granting to the Applicant an extension of time within which to appeal to the Court of Appeal against the judgment of the Federal High Court Port Harcourt Judicial Division
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presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors. delivered on the 20th July, 2009 as a person interested/party interested in the said matter by virtue of being legal entity who assumed the assets and liabilities of Bank PHB Plc. (formerly known as Platinum Habib Bank)
5. Such further Order(s) as the Honourable Court may deem fit to make in the circumstances.
The application is brought upon the following grounds:
i. Judgment was entered under the undefended list against the Platinum Habib Bank Plc on the 20th July 2009 in Suit No. FHC/PH/CS/664/2008 Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors for the sum of N21,308,669.47 and N17,798,009.95 respectively and interest thereon. The total judgment sum is the sum of N39,106,679.42.
ii. Platinum Habib Bank Plc by Notice of Appeal dated the 29th of July, 2009 appealed against the said judgment in Suit no FHC/PH/CS/664/2008 Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors.
iii. Platinum Habib Bank Plc later changed its legal representation from
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Messrs. Chike Adibuah & Associates to Mrs. M. A. Essien, SAN of Principles Law Partnership and to that effect prepared another Notice of Appeal dated the 23rd of October, 2009 and same was filed on the 27th of October, 2009.
iv. Platinum Habib Bank Plc fulfilled the conditions of appeal, compiled and transmitted record of appeal to this Honourable Court, filed its brief of argument in Appeal No. CA/PH/502/2009, amended its said Notice of Appeal with same deemed properly filed and served on the 30th day of June 2010.
v. Due to the decision of this Honourable Court in Appeal No. CA/PH/406/2009 Engr. Okey Ibeabuchi & 4 Ors. Vs. Mr. Samuel M. Ikpokpo and several other decisions of this Honourable Court on the issue of filling fees for notice of appeal and the potential impact on Appeal No. CA/PH/502/2009, that necessitated the withdrawal of Appeal No. CA/PH/502/2009 and the application dated the 26th of November, 2012 but filed on the 27th November, 2012 pending therein for substitution.
vi. The application that was pending was to substitute the Applicant for the former Platinum Habib Bank. The application suffered as a result of the
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striking out of the said appeal no. CA/PH/502/2009.
vii. The Applicant has always taken prompt steps to seek leave to appeal.
viii. The failure to pay the adequate filing fees for the Notice of Appeal struck out on the 4th of December, 2014 was not deliberate but solely due to error of counsel for Platinum Habib Bank Plc who failed to inform the registrar of the lower Court the position of the law on amount payable.
ix. By special resolution and with the authority of the Registrar General of Corporate Affairs Commission (CAC) Platinum Habib Bank Plc changed its name to Bank PHB Plc and was issued with Certificate of incorporation No. 215881 dated the 18th day of September, 2008.
x. Following the revocation of the operating license of Bank PHB (previously called Platinum Habib Bank Plc) by Central Bank of Nigeria (CBN), the assets, deposit liabilities and other certain liabilities of Bank PHB Plc were assumed by Keystone Bank Limited by virtue of Purchase Association Agreement (PAA.) dated August2 2011 entered into between Nigeria Deposit Insurance Corporation (NDIC) and Keystone Bank Limited.
xi. NDIC entered into the agreement with
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the Applicant pursuant to its statutory role under the Nigeria Deposit Insurance Act.
xii. By the said PAA Keystone bank Limited assumed the assets, deposit liabilities and certain other liabilities of Bank PHB Plc which includes but are not limited to litigation liabilities which are all judgment debts, awards, claims and damages entered against bank PHB Plc by Courts of competent jurisdiction as at the 6th 7th of August 2011.
xiii. The Applicant is a full-fledged commercial bank.
xiv. It is widely known that the Applicant took over the assets and liabilities of Bank PHB including Bank premises, fixtures furniture etc. as set out in the PAA.
xv. Keystone Bank limited is a proper and interested party as it has interests in the case and the subject matter of this appeal arising from the judgment of the lower Court by virtue of the said PAA and operation of law.
xvi. The time within which seek leave to appeal and within which to appeal have since elapsed.
xvii. The Applicant has prepared a proposed Notice of Appeal and same shall be filed within 24hours of the grant of this application.
xviii. It is only the Court of
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Appeal to which the Applicant intends to appeal to against the judgment of the Federal High Court Port Harcourt that has the jurisdiction to extend the time within to seek leave to appeal, grant leave to appeal and to appeal.
xix. The Court of Appeal has the discretion to grant an extension of time to the Applicant to seek leave to appeal and to appeal to the Court of Appeal against the judgment of the Federal High Court Port Harcourt.
xx. Platinum Habib Bank had filed applications dated the 4th of December 2013 and 2nd of January 2014 seeking similar reliefs to the instant application including leave to appeal and stay of execution. The Applicant herein had also filed similar Application dated 7th of May 2014.
xxi. It was based Counsels further analysis of this case as to the format of the application that necessitated the filing of this application.
From the affidavit in support of the motion on notice the following salient facts are discernable. On the 20th July, 2009 judgment was entered against Platinum Habib Bank in the Federal High Court Port Harcourt Judicial Division. On 29th July, 2009 the bank appealed against the
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decision. After change of counsel another notice of appeal was filed on 27th October, 2009. The appeal was entered as Appeal No. CA/PH/502/2009. An amended notice of appeal and appellants brief of argument both filed on 21/6/2010 were deemed duly filed and served on 30/6/2010. The judgment debt was deposited in the Court in bank draft.
Following the decision of this Court in Appeal No: CA/PH/406/2009 Ibeabuchi & 4 Ors V. Ikpokpo on payment of inadequate filing fees, the appeal was rendered incompetent and the notice of appeal was withdrawn even though there was a pending application to substitute the Applicant for Platinum Habib Bank.
On 21st October, 2014, the Supreme Court set aside the decision in Ibeabuchi & 4 Ors V. Ikpokpo.
On 17th October 2007 Platinum Habib Bank Plc changed its name to Bank PHB. In August, 2011 the Nigeria Deposit Insurance Corporation (NDIC) entered into an agreement with the Applicant by which the former transferred the assets, deposits, liabilities of Bank PHB Plc to the Applicant under a Purchase and Assumption Agreement (PAA) Exhibit J.
Therefore the Applicant does not require any authorization of
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NDIC to defend actions filed in Court against Bank PHB Plc. The Applicant assumed the litigation liabilities of Bank PHB Plc. The Applicant is an interested party in the subject matter of this appeal by virtue of Exhibit J.
That the applicant is not a bridge bank as it has a share capital of N25 billion in accordance with the Central Bank of Nigeria (CBN) policy Exhibit L.
The Applicant has interest in the money deposited in Court in Appeal No: CA/PH/502/2009. It is a notorious fact that the Applicant took over the assets and liabilities of Bank PHB. Under Exhibit J the applicant was assigned all the assets and liabilities of Bank PHB.
On these facts, the applicant needs leave to appeal. To this end the applicant has prepared a proposed notice of appeal annexed to the affidavit and marked exhibit N.
Failure of Bank PHB to appeal within time was not out of disrespect to Court but due to reasons contained in the affidavit and failure to inform the Registrar of the Court timeously by counsel that Platinum Habib Bank was under assessed as a result of which the appeal had to be withdrawn and was struck out as a result of inadequate filing
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fees.
That the Respondent will not be prejudiced if this application is granted as the grant of the application will ensure that the appeal is heard on its merits.
The 1st and 2nd Respondents filed a process called 1st and 2nd Respondents affidavit in opposition to the motion on notice dated 3rd June, 2015 and filed on 4th June 2015. On 15th February, 2017 the 1st and 2nd Respondents filed 1st and 2nd Respondents counter affidavit to the motion on notice dated 3rd June, 2015 and filed on 4th June, 2015. As the counter affidavit was filed only the day before the date the application was heard, the same should be discountenanced. It was only served on Applicant at 9:00am on the 16th February, 2017 the day the motion was heard. Applicant did not have the opportunity to react to the counter affidavit.
The Court will therefore discountenance the counter affidavit which was only served on the Applicant on the 16th February, 2017 when the application was heard.
I will however consider the affidavit in opposition to the motion on notice dated 3rd June, 2015 and filed 4th June, 2015.
The 1st and 2nd Respondents say that Appeal No.
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CA/PH/502/2009 is still pending between 1st and 2nd Respondents and Platinum Habib Bank Plc. That during the pendency of the Appeal No: CA/PH/502/2009, the operating licence of Platinum Habib Bank Plc was revoked by Nigeria Deposit Insurance Corporation under the NDIC Act 2006. That the Applicant is a Bridge Bank set up and funded and managed by appointees of the Nigeria Deposit Insurance Corporation. That as a Bridge Bank the Applicant did not at any time and had never been authorised by NDIC to represent it by filing this application. That there is no banker customer relationship between the 1st and 2nd Respondents and the applicant. That Appeal No: CA/PH/176M/2015 is an abuse of Court process and that the Applicant is not in any way aggrieved by the judgment in FHC/PH/CS/664/2008.
In a further and better affidavit in support of the motion on notice, the Applicant stated that Appeal No: CA/PH/502/2009 is no longer pending having been struck out on 4th December, 2013. That the 1st and 2nd Respondents despite the pendency of the instant application filed an application seeking for the withdrawal of the judgment debt in the said
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appeal deposited in Court by virtue of the order of the Court. That the Applicant is an interested party and it has interests in the subject matter of this appeal and Appeal No: CA/PH/502/2009 arising from the judgment of the lower Court by virtue of the PAA. Applicant maintained that it ceased to be a bridge bank in accordance with the law having acquired a share capital of N25 billion in accordance with CBN policies. It maintained that Bank PHB was not a failed institution but a failing institution. That NDIC was not a provisional liquidator of Bank PHB as it was not a failed bank. That the Applicant is a licensed commercial bank and does not need the authorization of the NDIC to institute this action which resulted from Suit No: FHC/PH/CS/664/2008. The Applicant maintained that it is an interested party as it has interest in the subject matter of this appeal arising from the judgment of the lower Court by virtue of the Purchase and Assumption Agreement (PAA). That Bank PHB was not in possession of any money belonging to the 1st and 2nd Respondents and the alleged Educational Trust Fund of the 1st and 2nd Respondents was with Hallmark bank now Ecobank to the
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knowledge of the 1st and 2nd Respondents.
The 3rd Respondent did not file a counter affidavit. M. J. Micah learned counsel for the 3rd Respondent said that he was not opposing the application.
In his written address in support of the application learned senior counsel for the Applicant formulated the following lone issue for determination:
Whether the honourable Court can grant the Applicants prayers as sought in its said motion on notice dated the 3rd of June, 2015.
The 1st and 2nd Respondents formulated the following three issues:
1. Whether the applicant has shown sufficiently in law and in the affidavit in support of Motion on Notice that it is entitled to leave to appeal as an interested party.
2. Whether the withdrawal of the appeal by the appellant on the day fixed for hearing and the striking out of Appeal No. CA/PH/502/2009: PLATINUM HABIB BANK PLC vs. JOHNBOSCO OZIGBU & ORS amounts to a dismissal.
3. Whether Platinum Habib Bank Plc or its successor in title can relitigate the issues raised in Appeal No. CA/PH/502/2009.
I will determine the application on the lone issue formulated by the Applicant.<br< p=””>
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In argument in support of the application, Learned Senior Counsel for the Applicant submitted that the reasons for the inability of the Applicant to have sought leave from the lower Court are contained in paragraphs 13 28 of the affidavit in support of the application and that the reasons show that only this Court has the jurisdiction to entertain such an application. We were referred toNNPC V. O.E Nig. Ltd (2008) 8 NWLR (Pt. 1090) 583 at 607 and Section 243 (9) of the Constitution (as amended).
The Court was referred to the definition of a person interested in Re: Ijelu (1992) 9 NWLR (Pt. 266) 414 at 421 E G. and Ikonne V. Commissioner of Police & Anor (1986) 4 NWLR (Pt. 36) 473 at 479.
It was submitted that the Applicants legally cognisable interest is shown in paragraph 18 of the affidavit in support. We were also referred to exhibits J, D, E, E1, E2 and E3.
It was submitted that where a person is not a party on the record, it is apt for him to apply to be joined as a party to the action as his name did not feature in the record. This the Applicant has done. We were referred to Padawa V. Jatau
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(2003) 5 NWLR (Pt. 813) 270.
The applicant, it was further submitted, in compliance with the law has applied for leave to be made a party in the case, extension of time to seek leave to appeal, leave to appeal and for extension of time to appeal as an interested party. We were referred to Owena Bank (Nig) Plc V. N.S.E Ltd (1997) 8 NWLR (Pt. 515) 1 at 13.
The Applicant, it was submitted, has a constitutional right to appeal and by this application seeks leave to exercise that right out of time. Courts, it was submitted, do not toy with constitutional rights. Thus, nothing must be done or left undone which is capable of thwarting the exercise of that right. We were referred to Mangraht V. Oduba (2004) NWLR (Pt. 863) 279 at 287.
It was submitted that from the affidavit in support particularly paragraphs 427 the Applicant has met the conditions for the grant of extension of time to appeal. These are: Good and satisfactory reasons for not filing the appeal timeously.
a) That the appeal that had been filed by the defunct Bank PHB was ready for hearing with briefs in when it was struck out on the grounds of inadequate filing fees as a
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result of the decision in Ibeabuchi V. Ikpokpo (supra). The application to substitute the said bank was also affected and was also struck out. The decision in Ibeabuchi V. Ikpokpo and other similar cases was set aside by the Supreme Court in Ogwe & Anor V. IGP & Ors (2015) 7 NWLR (Pt. 1459) 505.
b) Following the decision in Ogwe V. IGP (supra) page 524 A-D failure to pay appropriate filing fees was held to be error of the Court Registry and not the party. In this case Bank PHB suffered for the same.
c) That paragraph 24 of the affidavit in support shows that the failure to seek leave to appeal within time was as a result of various errors of counsel and the Court is urged not to visit the sins of counsel on the litigant. We were referred to Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 555.
2 Special and exceptional circumstances upon which extension of time should be granted.
a) The notice of appeal, it was submitted, raises the issue of proper service which borders on jurisdiction which warrants the grant of extension of time to appeal. We were referred to NNPC V. Odidere Enterprises Nig. Ltd (2008) 8 NWLR (Pt. 1090)
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583 at 610 611.
b) The notice and grounds of appeal, it was further submitted contain good, substantial and arguable grounds of appeal on a recondite point of law which includes the alleged liability of a bank for failure to notify a customer that his cheque has been returned unpaid. We were referred to Rosehill Ltd V. Okporo Vent Ltd (2006) 5 NWLR (Pt. 974) 461.
The Applicant, it was submitted, has a viable and existing interest conferred on it by the combined effect of the Nigeria Deposit Insurance Act and Exhibit J which was executed in favour the Applicant by NDIC.
This Court, it was submitted, has taken judicial notice of the fact that Keystone Bank has taken over the assets of Platinum Habib Bank. We were referred to Keystone Bank Limited V. A. O. S. Practice Limited (2013) LPELR 20357 CA per Saulawa JCA.
We were referred to the affidavit in support of the application.
Bank PHB, it was submitted, became a failing bank as a result of which NDIC took all necessary steps pursuant to Sections 38, 39 and 59 and in furtherance of its statutory duties and powers entered into an agreement exhibit J with the Applicant by
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which the Applicant took over the litigation liabilities and assets of Bank PHB.
It was submitted that since the effective date of the agreement exhibit J is 5th August, 2011 and the judgment of the lower Court was delivered before that date, it became a litigation liability considering the effect of recitals E. F. G; clauses 1.1, 2.1 (i) and (j); 3.2 by which the Applicant assumed certain assets and liabilities of the failing bank which is defined in clause 1.1 of exhibit J as Bank PHB.
By Exhibit J, it was submitted, the Applicant took over the Assumed litigation and Litigation liabilities and related liabilities as defined in clause 1.1 of Exhibit J. The Court was referred to clause 2.1 (i) and (j) which specifically state that the applicant expressly takes over the assumed litigation and litigation liabilities which exist as at the effective date of the 5th August, 2011. We were referred to clauses 3.1 and 3.2 which deal with rights of the Applicant in relation to the assets, purchased liabilities etc.
It was submitted that the money deposited by Bank PHB with the Deputy Chief Registrar to secure stay of
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execution is an asset of the bank (subject to the outcome of the appeal for which the Applicant seeks leave) and belongs to Bank PHB. By virtue of clause 3 of exhibit J, the Applicant, it was submitted, assumed the rights therein.
It was submitted that by virtue of Exhibit J which the NDIC executed pursuant to its statutory role and powers the Applicant stepped into the shoes of Bank PHB and therefore has a direct, genuine legally recognised interest in the matter of the judgment that was delivered by the lower Court which impacted Bank PHB and prejudicially affected its interest and the judgment debt that was paid into the Court was paid by Bank PHB in order to stay the execution of the judgment. It was submitted that the Applicant which could be liable for damages was a person interested. We were referred to In Re: Ugudu (1985) 5 NWLR (Pt. 93) 189 at 198 201 and Insurance Office Ltd V. Ojemuyiwa (1965) All NLR 1.
The Applicant, it was submitted, has shown by the depositions and arguments that it has a valid subsisting interest in the matter. Consequently, it has made out a strong case for leave to be granted it to appeal.
The
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attention of the Court was drawn to the decision of this Court in CA/PH/390M/2013 where it granted a similar application on 17th February, 2013.
The Court was urged to resolve the issue in favour of the Applicant and to grant the application.
In his arguments in opposition to the application learned counsel for the 1st and 2nd Respondents on issue 1 first referred the Court to the definition of a person having interest in the following authorities: Societe General Bank (Nig) Ltd V. Aferokpo & Ors (1999) 11 NWLR (Pt. 628) 521, Mobil Producing (Nig) Unlimited V. Monokpo (2003) 18 NWLR (Pt. 852) 346, Omotosho & Ors V. Abdullahi & 3 Ors (2008) All FWLR (Pt. 42) 114 at 1128 A B,First Bank of Nigeria Plc V. Akpraobong Community Bank Ltd & Anor (2006) All FWLR (Pt. 319) 927 at 965 and PDP V. Sidi Ali (2004) All FWLR (Pt. 200) 1371 at 1382.
The applicant, it was submitted, has failed to show that it has suffered a legal grievance.
It was submitted that the Nigeria Deposit Insurance Corporation as the deemed statutory Liquidator (by operation of law) is the authorised person to sue or continue legal proceedings in
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its name and on behalf of Platinum Habib Bank Plc under Section 40 of the Nigeria Deposit Insurance Act 2006.
It was submitted that the Applicant has failed to establish any direct interest in the subject matter of the dispute which is the decision of the Federal High Court, Port Harcourt.
It was submitted that the exhibit J (not exhibit H) is not sufficient in this respect as the said exhibit is a mere contract made by the (NDIC) deemed liquidator.
It was further submitted that there is no banker/customer contractual relationship between the applicant and the 1st and 2nd Respondents.
It was submitted that before an application for leave to join a suit on appeal as an interested party is granted, the applicant must show that it has locus standi to prosecute the appeal.
It was submitted that exhibit J in support of the motion on notice did not confer any right on the subject matter of Suit No: FHC/PH/664/2008 on the applicant.
It was submitted that the Applicant failed to fulfil the conditions precedent for the filing of the present application for leave to appeal as an interested party.
It was submitted that
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failure of the Applicant and its legal practitioner to obtain consent before appearing in this matter means that the Applicant has failed to follow the procedure requested.
It was further submitted that the proposed notice of appeal does not contain arguable grounds.
Platinum Habib Bank, it was submitted, has not been liquidated and is therefore still in existence.
On issue 2, we were referred Order 11 Rules 1 and 5 of the Court of Appeal Rules 2011.
The effect of the application to strike out the appeal is the same as if the appeal was dismissed, it was submitted. Learned counsel referred the Court to several authorities. They include: Ikeakwu & 2 Ors V. Nwankpa (1966) NSCC Vol. 11 at page 83, Lafferi Nigeria Limited & Anor V. NAL Merchant Bank Plc & Anor (2015) 5 SC (Pt. 11) 49. Ezomo V. AG Bendel State (1986) 7 SC (Pt. 11) 186 at 199 and The Young Shall Grow Motors Limited V. Okonkwo & Anor (2010) 3 5 SC (Pt. 111) 124 at 139.
It was submitted that Platinum Habib Bank Plc having withdrawn Appeal No: CA/PH/502/2009 for being incompetent under Order 6 Rule 6 of the Court of Appeal Rules 2011 after briefs of
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argument had been filed and exchanged and motions to terminate the appeal pending, is bound by the decision and will not be allowed to resile or relitigate same through a privy, agent or successor in title. The Young Shall Grow Motors Limited V. Okonkwo (supra) was quoted extensively.
It was submitted that the admission that the appeal was ripe for hearing should be acted upon to hold the withdrawal of Appeal No: CA/PH/502/2009 at that stage and order striking the said appeal out is deemed to be a dismissal.
On issue 3, it was submitted that the order of dismissal created a bar to a subsequent appeal by Platinum Habib Bank Plc or its successor in title, that is, the Applicant in this appeal. The ruling delivered on 4th December, 2013, it was submitted operates as estoppel per rem judicatam.
It was submitted that Platinum Habib Bank is estopped from relitigating this appeal whether directly or indirectly through the Applicant having withdrawn same when the briefs of argument had been filed and exchanged and the appeal was ripe for hearing.
It was submitted that Platinum Habib Bank Plc and its successor in
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title, the Applicant having failed to appeal against the order made on 4th December, 2013 the ruling qualifies as a decision and therefore appealable. Having not appealed the decision, the ruling striking out/dismissing the appeal is valid and subsisting.
The Court it was submitted, is without jurisdiction to consider any other process including Appeal No: CA/PH/176M/2015.
In reply on points of law learned senior counsel for the Applicant submitted that the law recognises instances where there may be changes in ownership of a company or a banks assets and liabilities. And that it has never been the intention of the law that a person with an interest in the subject matter of a suit will be shut out otherwise the Constitution of the Federal Republic of Nigeria would not have made provision for such situations.
It was submitted that contrary to the arguments of 1st and 2nd Respondents there is nothing in Exhibits J, K and K1 to suggest that the Applicant is a bridge bank. Thus Section 425 of the Companies and Allied Matters Act Cap 120 LFN 2004 and Section 40 of the NDIC Act are not applicable to this case as Bank PHB was not a
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failed bank and also the Courts sanction was not required.
It was submitted that Platinum Habib Bank which later became Bank PHB was a failing bank and not a failed bank. Consequently following NDICs powers by virtue of the NDIC Act the Applicant took over the assets and liabilities of the said bank. Consequently even if Bank PHB is still a legal personality by operation of law Applicant assumed all its assets and liabilities and took over its banking business. Thus the arguments of 1st and 2nd Respondents are baseless.
It was submitted that the reliance on Order 11 Rule 5 of the Court of Appeal Rules 2011 by 1st and 2nd Respondents was misconceived. The appeal in this case it was pointed out, was withdrawn on the basis of inadequate filing fees. Therefore Order 11 Rule 5 cannot apply. It was submitted that it is only an appeal withdrawn in the circumstances of that Rule that can be considered a dismissal. We were referred to the unreported decision of this Court in Appeal No: CA/L/1107/2010 A.I.C. Limited V. Total Upstream Nigeria Ltd & Ors where Akaahs JCA (as he then was now JSC) said: If a notice of appeal is dismissed for
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being incompetent an application can be brought to regularise the appeal.
It was further submitted that cases relied upon by 1st and 2nd Respondents were decided before the decisions of this Court and the Supreme Court in Ibeabuchi V. Ikpokpo (supra) and thus they are inapplicable. Exhibit F it was submitted clearly shows that the matter was withdrawn on grounds of inadequate filing fees. Therefore the fact that it was withdrawn on a date fixed for hearing is immaterial. The withdrawn and subsequent striking out, it was submitted, was necessitated by the decision of the Court in Appeal No: CA/PH/406/2009 Engr. Okey Ibeabuchi & 4 Ors V. Ikpokpo. Therefore Order 11 of the Court of Appeal Rules 2011 is not applicable.
1st and 2nd Respondents counsel, from the records did not oppose the striking out of matter on ground of filing fee, it was submitted. It was submitted that having consented to striking the appeal out on ground of filing fee he cannot now turn round and argue that the appeal was dismissed.
It was submitted that the Court has power under Section 15 of the Court of Appeal Act to relist an appeal where the notice of
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appeal has been struck out based on incompetence.
It was submitted that the fact that briefs had been filed does not alter the consequence of a withdrawal based on an apparent (at the time) incompetent notice of appeal because there is no valid notice of appeal, there is nothing upon which the briefs of argument can stand and it is for this reason that where a preliminary objection to an appeal is entertained the appeal can be struck out on grounds of incompetence leaving a party the liberty to file his appeal again because the case would not have been determined on the merits. We were referred to Okonkwo V. UBA Plc (2011) 16 NWLR (Pt. 1274) 614 and Akunyili & Anor V. Ngige & Anor Appeal No: CA/E/EPT/8/2012. It was submitted that it is only when an appeal is withdrawn under Order 11 of the Court of Appeal Rules 2011 that it will amount to a dismissal.
It was pointed out that this Court has relisted appeals that were struck out as a result of inadequate filing fees as a result of the decision in Ibeabuchi V. Ikpokpo (supra) which was set aside by the Supreme Court. The matter, it was submitted could not be relisted on an application because in
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the interim, the Applicant took over assets and liabilities of the Bank PHB. Thus the procedure adopted by the Applicant is the proper procedure outlined by the Supreme Court in Ikeakwu & Ors V. Nwankpa (supra).
It was submitted thatThe Young Shall Grow Motors Ltd V. Okonkwo & Anor (supra) relied upon by 1st and 2nd Respondents is distinguishable from this matter.
It was submitted that the conditions precedent for a successful plea of res judicata were not proved by the 1st and 2nd Respondents.
Under Section 243(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) any person who did not take part in the proceedings in the Federal High Court or High Court wishing to appeal against the decision as a party interested must obtain leave of Court. The Section provides thus:
Any right of appeal to the Court of Appeal from the decisions of Federal High Court or High Court conferred by this Constitution shall be
(a) Exercisable in the case of civil proceedings at the instance of a party thereto or with the leave of the Federal High or the High Court or the Court of Appeal at the instance of any
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other person having an interest in the matter …
A person having an interest is a person whose interest is prejudicially affected by the judgment or order of the Court. See In Re Ijelu (1992) 9 NWLR (Pt. 266) 414 at 421.
The Applicant is not only seeking leave to be joined as an interested party but he is also praying for extension of time within which to appeal.
The granting of extension of time within which to appeal is at the discretion of the Court. And the Court in exercising its discretion will take into consideration certain factors which include the following:
1. The constitutional right of the Applicant to appeal.
2. The reasons for the delay. The affidavit in support of the application must show good and substantial reasons for failure to appeal within the prescribed time.
3. Grounds of appeal which prima facie show good cause why the appeal should be heard.
4. That the justice of the case demands that the appeal should be heard. SeeMangraht V. Oduba (2004) 4 NWLR (Pt. 863) 279/287 and Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 554 555.
On the available affidavit evidence before the
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Court particularly paragraph 18 of the affidavit in support of the application, Exhibit J recitals E, F and G clauses 1.1, 2.1 and 3.2 and Exhibits D, E, E1, E2, E3 the Applicant has shown that the judgment of the Federal High Court sought to be appealed against prejudicially affects it. Under Section 38 of Nigerian Deposit Insurance Corporation Act 2006, the corporation in consultation with the Central Bank may acquire another insured institution and the acquiring insured institution shall assume all recorded deposits and liabilities of the failing insured institution. It was sequel to this law that the Applicant entered the (PAA) agreement Exhibit J with the NDIC.
Has the Applicant shown good and satisfactory reasons for the delay in appealing within the time prescribed? It is common ground between the parties that the appeal was ready for hearing when this Court in another appeal Ibeabuchi V. Ikpokpo decided that an appeal filed without payment of adequate filing fees was incompetent. Noticing that this appeal was on the authority of Ibeabuchi V. Ikpokpo incompetent for none payment of adequate filing fees, Applicant applied for the appeal and motions
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to be struck out. The appeal for this reason was struck out. It was only after the Supreme Court set aside the decision of this Court on the issue of payment of inadequate filing fees that the Applicant was able to approach this Court with this application. Undoubtedly the Applicant should not be punished for the sin of the registry or that of his counsel who did not assess the filing fees correctly. This was a good reason for the delay. Mistake of registry of the Court and counsel is a special circumstance. See Akinpeju V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 555. The Court would readily exercise its discretion to extend time prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by the party to do the act within the prescribed period was caused by the negligence or inadvertence of counsel.
From the proposed grounds of appeal Exhibit N the grounds of appeal contain good, substantial and arguable grounds of appeal.
The 1st and 2nd Respondents have not produced affidavit evidence to show that the Applicant is a bridge bank. The assertion is therefore baseless.
Argument of learned counsel for the 1st and
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2nd Respondents that the striking out of the appeal was under Order 11 Rule 5 of the Court of Appeal Rules 2011 and amounted to a dismissal is superficially attractive since it is common ground between the parties that briefs had been filed and exchanged and the appeal was ripe for hearing. To determine whether the striking out amounted to a dismissal, it is fitting to look at the proceedings of the Court on 14th December, 2013 when the appeal was struck out.
Parties absent.
C. B. Sigalo for the Appellant.
George Ogara for 1st & 2nd Respondents/Applicants.
C.C. Obi (Mrs.) for 3rd Respondent.
L. Gbarage for 4th Respondent.
SIGALO: There are pending motions. We have however noticed that our notice of appeal is incompetent for failure to pay appropriate filing fees. We hereby urge that the appeal be struck out accordance with Order 6 Rule 6.
OGARA: No objection
OBI: No objection
GBARAGE: We do not oppose.
COURT:- The Notice of Appeal at PP. 244 254 of the record was filed on 29/10/2009 with a filing fee of N500.00, instead of N5000.00 stipulated by the 2007 Rules of this Court. The notice on
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account of inadequate filing fee is incompetent. It is for this reason that Mr. Sigalo of Counsel to appellant prays that it be struck out. All counsel for respondents agree. The notice of appeal, at the instance of Appellants counsel and for being incompetent, is hereby struck out. All pending applications are hereby struck out.
It is clear from the proceedings and order of the Court reproduced above that the appeal was withdrawn on the basis of inadequate filing fees. Order 11 Rule 5 of the Court of Appeal Rules 2011 is therefore inapplicable. The several authorities on the effect of the striking out of an appeal relied on by learned counsel for the 1st and 2nd Respondents are distinguishable from the instant application. As pointed out earlier the withdrawal of the appeal was sequel to the decision of this Court in Appeal No: CA/PH/406/2009 Engr. Okey Ibeabuchi & 4 Ors V. Ikpokpo. It was not an attempt to escape the appeal through the backdoor in view of the total sum of N76, 718, 000.00 already deposited in the Court by the Applicant. It is only when the appeal is withdrawal under Order 11 of the Court of Appeal Rules 2011 that the
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striking out of same would amount to a dismissal. From the record of proceedings reproduced above the appeal was not withdrawal under Order 11 of the Rules of this Court. The striking out of the appeal on 4th December, 2013 in my view did not amount to a dismissal. The appeal can therefore be reopened by an appropriate procedure either by an application to relist or by a fresh notice of appeal with an enlargement of time. See Ikeakwu & Ors V. Nwankpa (1966) NSCC Vol. 4 p8.
From what I have shown elsewhere in the ruling the plea of res judicata which means that the issue has been definitely settled by judicial decision is inapplicable to this application. The essential elements for res judicata to apply include the following: 1) an earlier decision on the issue, (2) a final judgment on the merits, and (3) the involvement of the same parties, or their privies. See Blacks Law 10th Edition.
Finally, I do not hesitate to resolve the only issue for determination in favour of the Applicant. Having resolved the only issue for determination, I find merit in the application.
The application is therefore granted as prayed.
1. The Applicant
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is hereby made a party in the case being a person having interest in the matter pursuant to Section 243(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) with regard to the judgment of the Federal High Court delivered by Olotu J in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc. & 2 Ors. by virtue of the Applicant being the legal entity who assumed the assets and liabilities of Bank PHB Plc (formerly known as Platinum Habib Bank Plc.).
2. The Applicant is granted an extension of time within which to seek leave to appeal to the Court of Appeal against the judgment of the Federal High Court Port Harcourt Judicial Division presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc. & 2 Ors. delivered on the 20th of July, 2009 as a person interested/party interested in the said suit by virtue of the Applicant being the legal entity who assumed the assets and liabilities of Bank PHB Plc (formerly known as Platinum Habib Bank Plc.).
3. The Applicant is granted leave to appeal to the Court of
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Appeal against the judgment of the Federal High Court Port Harcourt Judicial Division presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors. delivered on the 20th July, 2009 as a person interested/party interested in the said matter by virtue of being legal entity who assumed the assets and liabilities of Bank PHB Plc. (formerly known as Platinum Habib Bank)
4. The Applicant is granted an extension of time by seven days from today within which to appeal to the Court of Appeal against the judgment of the Federal High Court Port Harcourt Judicial Division presided over by Honourable Justice G. K. Olotu in Suit No. FHC/PH/CS/664/2008 between Johnbosco Ozigbu & Anor. V. Platinum Habib Bank Plc & 2 Ors. delivered on the 20th July, 2009 as a person interested/party interested in the said matter by virtue of being legal entity who assumed the assets and liabilities of Bank PHB Plc. (formerly known as Platinum Habib Bank)
Parties to bear their respective costs.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of
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reading in draft the leading Ruling just delivered by my learned Brother, James Shehu Abiriyi, JCA, in this Application.
I agree in-toto with his lordships line of reasoning and the conclusion reached that the Application is highly meritorious. I too grant the Application and abide by all the consequential orders made in the said leading Ruling.
SAIDU TANKO HUSAINI, J.C.A.: I have the advantage of reading in draft the lead Ruling just delivered by my Lord, James Shehu Abiriyi, JCA.
On the facts presented on record, the applicant, that is Keystone Bank Limited the indeed person or parties interested in this matter, having stepped into the shoes of the then Bank PHB, and acquired all the assets and liabilities of that Bank. Indeed they are interested parties and thus in good position to step in and pursue this case. The Applicant in consequence are also entitled to the order extending time to seek leave to appeal the judgment of the Federal High Court, Port Harcourt Judicial Division in Suit No. FHC/PH/CS/664/2008 delivered on 20th July, 2009 between Johnbosco Ozigbu & Anor V. Platinum
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Habib Bank Plc & 2 Ors. It is hereby so ordered.
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Appearances:
Mrs. M.A. Essien, SAN with, A.T. Georgewill, D.U.Ulasi and IgweaghFor Appellant(s)
George Ogara for the 1st and 2nd Respondents.
M. J. Micah for the 3rd Respondent.For Respondent(s)
>
Appearances
Mrs. M.A. Essien, SAN with, A.T. Georgewill, D.U.Ulasi and IgweaghFor Appellant
AND
George Ogara for the 1st and 2nd Respondents.
M. J. Micah for the 3rd Respondent
