LAGOS STATE GOVT & ANOR v. NDIC & ORS
(2020)LCN/14267(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, June 02, 2020
CA/L/124/2003(R)
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Tijjani Abubakar Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Between
1. LAGOS STATE GOVERNMENT 2. L.S.D.P.C APPELANT(S)
And
- NIGERIA DEPOSIT INSURANCE CORPORATION (For Itself And On Behalf Of All The Creditors Of EKO AKETE 2004 Housing Project Substituted Pursuant To Order Of Court Dated 10th Of February, 2010) 2. ASI BUILDING SYSTEM LTD 3. FIRST BANK PLC 4. EKO INTERNATIONAL BANK 5. GUARANTY TRUST BANK 6. CENTRAL BANK OF NIGERIA 7. POLARIS BANK LTD (Party Sought To Be Substituted For The 4th Respondent) RESPONDENT(S)
RATIO
WHETHER OR NOT THE EXERCISE OF DISCRETION TO GRANT OR REFUSE THE APPLICATION IS A JUDICIAL AND JUDICIOUS EXERCISE
The exercise of discretion on whether to grant or refuse the application is a judicial and judicious exercise which is based on the materials presented and must be exercised for reasons connected to the case: ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8. PER OGAKWU, J.C.A.
WHETHER OR NOT DEPONENT TO AN AFFIDAVIT IS CONFINED TO THE FACTS AND CIRCUMSTANCES
Now, an affidavit meant for use in Court stands as evidence and must as near as possible conform to oral evidence that is admissible in Court. A deponent to an affidavit is therefore to confine himself to facts and circumstances. See BAMAIYI vs. THE STATE (2001) 4 SC (PT 1) 18 at 29. Often times it is only a thin line that separates facts or circumstances which are permissible for use in an affidavit, from depositions which are legal argument or prayer or conclusion, which are not permissible for use in an affidavit. Happily, the Supreme Court per Uwaifo, JSC in BAMAIYI vs. STATE (supra) at 32-33 laid down the test to be applied as follows:
“The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and it is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witnesses but left for the Court to reach.” PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellants by their application filed on 14th March 2019 seek for the following orders:
“1. An ORDER of this Honourable Court granting leave to substitute POLARIS BANK LIMITED for the 4th Respondent in this appeal.
2. An ORDER of this Honourable Court granting the Appellants/Applicants leave to amend their Notice of Appeal, Appellant’s Brief of Argument and all other subsequent processes in this Appeal to reflect the name of POLARIS BANK LIMITED”
The grounds upon which the application is predicated are as follows:
“a. The assets and liabilities of the said 4th Respondent have been assumed in the takeover of SKYE BANK PLC by POLARIS BANK LIMITED and POLARIS BANK LIMITED should be the rightful party to take the place of the 4th Respondent in this appeal.
b. The judgment or orders of this Honourable Court would not be binding or enforceable against POLARIS BANK LIMITED without an order to substitute the 4th Respondent with the latter being made.”
There is a seven-paragraph affidavit in support of the motion, an eight paragraph further
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affidavit in support of the motion deposed to on 11th April 2019 and a nine paragraph further and better affidavit in support of the motion deposed to on 17th June 2019. The exhibits relied upon were attached to the affidavits.
The 2nd-6th Respondents did not file any processes in respect of the application. However, the 1st Respondent and the party sought to be substituted for the 4th Respondent filed counter affidavits in opposition to the application. The 1st Respondent’s six paragraph counter affidavit was deposed to on 2nd April 2019 while the thirty-one-paragraph counter affidavit of the party sought to be substituted for the 4th Respondent was deposed to on 25th March 2019.
The Court ordered for written addresses to be filed and the said written addresses were filed and exchanged between the Appellant, the 1st Respondent and the party sought to be substituted for the 4th Respondent. At the hearing of the application, the learned counsel for the Appellant, 1st Respondent and party sought to be substituted for the 4th Respondent relied on their processes in urging the Court to uphold their respective submissions in the determination of the
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application. The learned counsel for the 2nd and 6th Respondents did not oppose the application while the 3rd-5th Respondents were absent and were also not represented by counsel at the hearing.
The Appellants written address was filed on 3rd October 2019 wherein a sole issue was distilled for determination, namely:
“Whether this Honourable Court ought to grant the Applicants’ Application as prayed?”
The Appellants further filed Replies on Points of law to the written address of the 1st Respondent on 22nd January 2020 and to the written address of the Party sought to be substituted for the 4th Respondent on 14th January 2020. The Replies on Point of Law were deemed as properly filed on 12th March 2020.
The 1st Respondent’s written address was filed on 27th November 2019, but deemed as properly filed on 12th March 2020. A sole issue was therein crafted for determination as follows:
“Considering the facts and circumstances of this application, whether the Appellants/Applicants have placed sufficient materials before this Court to warrant the grant of an Order substituting POLARIS BANK LIMITED for the 4th
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Respondent?”
The party sought to be substituted for the 4th Respondent filed its written address on 28th October 2019. It was deemed as properly filed on 12th March 2020. The issue for determination nominated by the Party sought to be substituted for the 4th Respondent is:
“Whether in view of the fact that there are no attachable funds belonging to the Appellants in custody of Polaris Bank Limited/Party sought to be substituted for the 4th Respondent to satisfy any eventual Judgment, the party sought to substituted for the 4th Respondent is a necessary party such that may entitle the Honourable Court to grant the Appellants’ application as prayed.”
I have ruminated on the issues for determination as distilled by the toreadors in this application and even though they are virtually the same two and tuppence, I find idoneous the issue as distilled by the 1st Respondent. It is therefore on the basis of the said issue that I will resolve this application.
ISSUE FOR DETERMINATION
Considering the facts and circumstances of this application, whether the Appellants/Applicants have placed sufficient materials before this
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Court to warrant the grant of an Order substituting POLARIS BANK LIMITED for the 4th Respondent?
SUBMISSIONS OF LEARNED COUNSEL
The Appellants submit that the Court only has jurisdiction to hear and determine matters between living persons and that an action cannot proceed against a deceased person as any order made would be void ab initio. Section 6 (6) (b) of the 1999 Constitution and the case of OPEBIYI vs. OSHOBOJA (1976) 10 NSCC 538 at 540 were referred to. It was maintained that a deceased person had to be substituted in order for a matter to be adjudicated by the Court vide EYESAN vs. SANUSI (1984) 15 NSCC 271 and ATANDA vs. OLANREWAJU (1988) 4 NWLR (PT 89) 394.
It was posited that by Exhibit TA/4 to the further and better affidavit, the assets and liabilities of Skye Bank were taken over by the party sought to be substituted for the 4th Respondent. It was stated that the material consideration for substitution is whether the cause of action survives the deceased party, so that the dispute can be determined between all necessary parties. The cases of MAINSTREET BANK LTD vs. MAIWADA (2017) LPELR-42656 (CA) and ATUEGBU vs. AWKA SOUTH LG (2002)
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15 NWLR (PT 791) at 635 were relied upon. It was opined that the party sought to be substituted for the 4th Respondent having assumed responsibility for the assets and liabilities of Skye Bank can be substituted for Skye Bank. The provisions of Order 15 Rule 2 of the Court of Appeal Rules, 2016 and the case of IN RE: APEH (2017) LPELR-42035 (SC) and EYESAN vs. SANUSI (1984) 4 SC 115 at 137 were called in aid. It was conclusively submitted that the cause of action survives the 4th Respondent and that on the state of the law it would be proper to grant the application and make the order for substitution sought.
The 1st Respondent raised a preliminary point of law challenging some paragraphs of the Appellants’ affidavits for offending the provisions of Section 115 (1) and (2) of the Evidence Act, 2011. The scarified paragraphs are paragraphs 3b, 3g and 5 of the “first further affidavit” filed on 11th April 2019; paragraphs 3g, 3h and 8 of the “second further affidavit” filed on 11th April 2019 [I did not find any such process in the records of the Court in respect of this application] and paragraphs 3d and 6 of the “further and
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better affidavit” filed on 17th June 2019. The Court was urged to strike out the said paragraphs for constituting either objections, prayers and legal arguments or conclusions and dismiss the application since there will be nothing left to consider; as the affidavit evidence on which the application is anchored constitutes a serious violation of the Evidence Act. The case of JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (1995) 1 NWLR (PT 371) 254 at 265 and BAMAIYI vs. THE STATE (2001) 8 NWLR (PT 715) 270 at 289 were cited in support.
The 1st Respondent submits, on the merits of the application, that the Appellant did not furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. The cases of ENYADIKE vs. OMEHIA (2010) 11 NWLR (PT 1204) 131, ABAH vs. MONDAY (2015) 14 NWLR (PT 1480) 569 and SD CONST CO. LTD vs. AYOKU (2011) 13 NWLR (PT 1265) 487 at 506-507 were referred to. The cases of APEH vs. PDP (2017) 11 NWLR (PT 1576) 252 and MESSRS U. MADUKA ENT (NIG) LTD vs. B.P.E. (2019) 12 NWLR (PT 1687) 440 were cited on the general principles of law relating to substitution and it was stated that the reason for the
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substitution sought by the Appellant was the alleged transmission or devolution of interest or liability of the 4th Respondent to Skye Bank and then to the party sought to be substituted for the 4th Respondent. It was argued that the revocation of the banking license of Skye Bank resulted in the said Bank closing its books, so the party sought to be substituted for the 4th Respondent could not have assumed any deposit liabilities from Skye Bank in respect of the cause of action.
It was asserted that the party sought to be substituted for the 4th Respondent was formed to assume all or any part of the liabilities of Skye Bank PLC and that it did not inherit all the pending litigation involving Skye Bank PLC. The Appellants, it was maintained, did not prove that the party sought to be substituted for the 4th Respondent assumed the deposit liabilities inuring in their favour or relating to this suit vide ATUFE vs. OGHOMIENOR (2004) 13 NWLR (PT 890) 327. It was conclusively submitted that the several affidavits filed by the Appellants did not establish any basis for the grant of the application.
The Party sought to be substituted for the 4th Respondent
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equally raised a preliminary point of law in its written address to the effect that the facts deposed to in paragraphs 16-23, 25, 27-31 of its counter affidavit were neither challenged nor controverted by the Appellants. The Court was urged to hold that the said unchallenged and un-contradicted facts are deemed admitted by the Appellants. The provisions of Sections 131, 132 and 133 of the Evidence Act, 2011 and the cases of MILITARY GOV. LAGOS STATE vs. ADEYIGA (2012) 2 SC (PT I) 68, OGOEJEOFO vs. OGOEJEOFO (2006) 3 NWLR (PT 966) 205, LONG-JOHN vs. BLAKK (1998) 6 NWLR (PT 555) 524 among other cases were referred to.
On the substance of the application, it was submitted that the party sought to be substituted for the 4th Respondent is not a necessary party since it is not the bankers of the Appellants and that the issues in the appeal can be completely and effectually determined without it being a party. The cases of P.W.T. (NIG) LTD vs. J.B.O. INTERNATIONAL (2010) 19 NWLR (PT 1226) 1 at 23 and BWACHA vs. IKENYA (2011) LPELR-81059 (SC) were called in aid. It was further submitted that the party sought to be substituted for the 4th Respondent was set up as
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a bridge bank pursuant to Section 39 (1) of the Nigeria Deposit Insurance Corporation Act, to assume certain, but not all, liabilities of Skye Bank and that it was not in possession of the monies of the Appellants. The party sought to be substituted for the 4th Respondent, it was conclusively submitted, was not a necessary party to the appeal and there was no reasonable cause of action against it.
In replication, the Appellants in their Replies on Points of Law maintain that no paragraphs of their affidavits offend the provisions of the Evidence Act as the depositions in the said affidavits are in respect of matters which a witness may place before a Court in his testimony on oath. The case of PRINCESS vs. GOVERNOR OF OGUN STATE (2018) LPELR-44986 (CA) was referred to. It was posited that the 1st Respondent had conceded that the party sought to be substituted for the 4th Respondent was formed to assume all or any part of the liabilities of Skye Bank, but did not show that any liability owed to the Appellants was among the excluded liability.
It was further submitted that by Section 39 (1) of the Nigeria Deposit Insurance Corporation Act, a bridge
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bank, like the party sought to be substituted for the 4th Respondent assumes such liabilities of a failing bank and not certain liabilities. The party sought to be substituted for the 4th Respondent, it was asserted, having taken over the assets and liabilities of Skye Bank is a necessary party. The cases of TAFIDA vs. BAFARAWA (1999) LPELR-6510 (CA), PANALPINA WORLD TRANSPORT LTD vs. J. B. OLANDEEN INTERNATIONAL (2010) LPELR-2902 (SC) and RE-MOGAJI (1980) [sic] 1 NWLR (PT 19) 578 were relied upon.
RESOLUTION
The Appellants seek a discretionary remedy from the Court. The exercise of discretion on whether to grant or refuse the application is a judicial and judicious exercise which is based on the materials presented and must be exercised for reasons connected to the case: ERONINI vs. IHEUKO (1989) 3 SCNJ 130 at 141 and OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8.
The 1st Respondent has challenged some of the paragraphs of the Appellants’ affidavits, which paragraphs, it argues, form the gravamina of the Appellants’ application, and which ought to be expunged for offending the provision of Section 115 (1) and (2) of the Evidence Act, 2011;
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and eo ipso, the application dismissed since there would no longer be any materials on which discretion can be exercised in favour of granting the application if the said paragraphs are expunged.
Now, Section 115 the Evidence Act, 2011 enacts as follows:
“115. (1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstance of the information.”
The Appellant’s objection on the defect in the affidavits
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is that it offends Section 115 (1) and (2) of the Evidence Act. The stipulations of Section 115 of the Evidence Act, 2011 is a reproduction of the provisions of Sections 86, 88 and 89 of the Evidence Act, 1990. It is rudimentary law that any paragraph of an affidavit which offends against the provisions of Section 115 of the Evidence Act may be struck out, but if it is not struck out, no weight should be attached to it: JOSIEN HOLDINGS LTD vs. LORNAMEAD LTD (supra), FMG vs. SANI (NO. 2) (1989) 4 NWLR (PT 117) 624 and EDU vs. COMM. FOR AGRIC. (2000) 12 NWLR (PT 681) 318. Indeed, it seems to be settled law that any paragraph of an affidavit which offends Section 115 of the Evidence Act ought not to be acted upon. It is liable to be discountenanced and struck out. See OSIAN vs. FLOUR MILLS (1968) 2 ALL NLR 13, EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD (2001) 18 NWLR (PT 744) 165 and A-G ADAMAWA vs. A-G (FED) (2005) 18 NWLR (PT 958) 581 at 625 and 657-658.
I iterate that I could not find in the records of Court any “second further affidavit” deposed to on 11th April 2019. The Appellants did not rely on any such further affidavit in
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arguing the application. So the paragraphs of the affidavits complained about would be restricted to those in the further affidavit of 11th April 2019 and the further and better affidavit of 17th June 2019. Paragraphs 3b, 3g and 5 of the Further Affidavit of 11th April 2019 read as follows:
“(b) Paragraphs 4 and 5 of the Counter-affidavit of the 1st Respondent are misleading and irrelevant to the determination of the Appeal.
(g) The substitution of the Polaris Bank for the 4th Respondent is necessary for the effectual determination of this Interlocutory Appeal.
5. I verily believe that the Judgement or Orders of this Honourable Court will not be binding or enforceable against Polaris Bank Limited without an Order to Substitute the 4th Respondent.”
In paragraphs 3d and 6 of the Further and Better Affidavit of 17th June 2019, it is deposed as follows:
“(d) The substitution of Polaris Bank for the 4th Respondent is necessary for the effectual determination of this Interlocutory Appeal.
6. I verily believe that the Judgment or Orders of this Honourable Court will not be binding or enforceable against Polaris Bank
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Limited without an Order to substitute the 4th Respondent.”
Now, an affidavit meant for use in Court stands as evidence and must as near as possible conform to oral evidence that is admissible in Court. A deponent to an affidavit is therefore to confine himself to facts and circumstances. See BAMAIYI vs. THE STATE (2001) 4 SC (PT 1) 18 at 29. Often times it is only a thin line that separates facts or circumstances which are permissible for use in an affidavit, from depositions which are legal argument or prayer or conclusion, which are not permissible for use in an affidavit. Happily, the Supreme Court per Uwaifo, JSC in BAMAIYI vs. STATE (supra) at 32-33 laid down the test to be applied as follows:
“The test for doing this, in my view, is to examine each of the paragraphs deposed to in the affidavit to ascertain whether it is fit only as submission which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument which ought to be pressed in oral argument; or it may be conclusion upon an issue which ought to be left to the discretion of the Court either to make a finding or to reach a
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decision upon through its process of reasoning. But if it is in the form of evidence which a witness may be entitled to place before the Court in his testimony on oath and it is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances which may be deposed to in an affidavit. It therefore means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence, while conclusions should not be drawn by witnesses but left for the Court to reach.”
Applying this test, it is beyond confutation that the paragraphs complained about, which I have reproduced above, are prayers and legal arguments which may be pressed by counsel in Court and are not fit for a witness in oral testimony or in affidavit evidence. The conclusions therein can only be reached by the Court and not by a witness. The said paragraphs being offensive of the provisions of Section 115 of the Evidence Act are hereby struck out: OSIAN vs. FLOUR MILLS (supra), EURO BATI CONCEPT S.A. vs. TROPICAL INDUSTRIAL CO. LTD
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(supra) and A-G ADAMAWA vs. A-G (FED) (supra). Howbeit, I hasten to add that the striking out of the said paragraphs will not inexorably lead to a dismissal of the application as contended by the 1st Respondent; this is because the remaining paragraphs of the affidavits of the Appellants, especially paragraph 3 (b) of the Further and Better Affidavit of 17th June 2019 and EXHIBIT TA/4 attached thereto are sufficient to sustain the application. See A-G ADAMAWA vs. A-G (FED) (supra) at 625G and 658C. I will therefore still consider the application on the merits based on the surviving paragraphs of the affidavits.
The party sought to be substituted for the 4th Respondent argued that certain paragraphs of its counter affidavit, not having been challenged or controverted by the Appellants, that the said paragraphs were deemed admitted and as a result the application should be dismissed. I have insightfully considered the depositions in the said paragraphs 16-23, 25, 27-31 of the Counter Affidavit. The said paragraphs dwell on the substance of the action at the lower Court. The pertinent consideration is whether the party sought to be substituted for the 4th
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Respondent is required for the purposes of the interlocutory appeal pending before this Court. It is the Appellants that have the burden of adducing sufficient materials for the application to be granted. The non-confutation or perceived admission of any paragraphs in a counter affidavit dwelling on the merits of the substantive action pending at the lower Court will play no part in this regard.
Apropos the foregoing, the Claimant at the lower Court was City Express Bank; which was later substituted by the 1st Respondent. The action was in respect of certain facilities it afforded the Appellants and the 2nd Respondent for the Eko Akete 2004 Housing Project. There was default, so an action was commenced by Originating Summons at the lower Court. The 3rd-6th Respondents were joined as parties to the action at the lower Court. The Appellants challenged the jurisdiction of the lower Court to entertain the action by Originating Summons and the joinder of the 3rd-6th Respondents as parties to the action. In its Ruling, the lower Court upheld its jurisdiction and further held that the 3rd-6th Respondents were properly made parties, since the decision of the
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Court may affect them in one way or the other. It is against this Ruling that the Appellants have brought this interlocutory appeal. It is against this background of the decision appealed against that the relevant principles for substitution of parties have be considered.
The 4th Respondent on record is Eko International Bank. It is agreed on all sides that it merged with other banks to form Skye Bank PLC. There had been no order of Court substituting Skye Bank PLC for the 4th Respondent. The banking license of Skye Bank PLC having been withdrawn, the party sought to be substituted for the 4th Respondent was established as a bridge bank for the said Skye Bank PLC. It is clear on the facts that the 4th Respondent on record is the precursor of Skye Bank PLC, which is succeeded by the party sought to be substituted by the 4th Respondent. The extent and scope of this succession will shortly captivate our attention.
Order 15 Rule 2 of the Court of Appeal Rules, 2016 provides as follows:
“2. Where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provision of Order 4 Rule 10, be made in that
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behalf to the Court below or to the Court either by any existing party to the appeal or by any person who wishes to be added or substituted.”
The application for substitution has been made by the Appellants, who are parties to this appeal. There has been no issue raised in this application as to whether the 4th Respondent is a deceased person within the meaning and intent of Order 15 Rule 2 of the Rules of this Court. Dealing with the essence of an application for the substitution of a person in litigation, Tobi, JSC stated as follows in EJEZIE vs. ANUWU (2008) 12 NWLR (PT 1101) 446 at 485:
“Generally an innocuous one granted as a matter of routine. This is because of the state of our adjectival law that parties should have free hand to change persons in the litigation process. And so applications for substitution do not generally give any problem …”
The opposition to this application has made the same far from routine. At the risk of prolixity, the appeal is, inter alia, against the decision of the lower Court that the 4th Respondent is a proper party to the action at the lower Court. The 1st Respondent, as Claimant at the
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lower Court, argued that the 4th Respondent was a proper party. It now relies on what it sees as changed circumstances in the maintaining of the accounts of the Appellants in the 4th Respondent to argue that there should not be a substitution as the 4th Respondent, and ipso facto, the party sought to be substituted for the 4th Respondent is not a proper party. The party sought to be substituted for the 4th Respondent has argued in the same vein that the Appellants do not maintain any accounts with it. It is my considered opinion that the line of argument pursued in opposition to the application strengthens rather than weakens the need to have an order for substitution made so that any decision rendered on appeal on whether the 4th Respondent was properly joined as a party to the action vel non will be binding on any successor of the 4th Respondent. But is the party sought to be substituted such a successor of the 4th Respondent? The linkage between the 4th Respondent, Skye Bank PLC and the party sought to be substituted for the 4th Respondent has been established and it is as clear as crystal. We will find out in a trice if the party sought to be substituted
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for the 4th Respondent is such a successor of Skye Bank PLC.
In PERETU vs. GARIGA (2012) LPELR (15534) (SC) 1 at 25, Ngwuta, JSC stated:
“Substitute, a noun, means ‘a person or thing that you use or have instead of the one you normally use or have’ … the word ‘substitute’ as … ‘one who stands in another’s place.’ ‘Substitution … as ‘A designation of a person or thing to take the place of another person or thing; the process by which one person or thing takes the place of another person or thing.”
See also LAU vs. PDP (2017) LPELR (42800) (SC) 1 at 38. The essence of substitution has been stated to be generally to put/place a thing in place of another for a purpose: IN RE: APEH (2017) LPELR (42035) (SC) 1 at 18. Relative to this application, the quaere is whether in the diacritical circumstances of this matter the party sought to be substituted for the 4th Respondent can take the place of, or be put in the place of the 4th Respondent for the purpose of this appeal which is, inter alia, aimed at deciding whether the lower Court, in the first place, was right to hold that the 4th
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Respondent is a proper party to the action.
In restating the principles of law relating to substitution of parties, Muhammad, JSC (now CJN) stated as follows in IN RE: APEH (2017) LPELR (42035) (SC) 1 at 35 -36:
“I think it is apt for me at this stage, to remind my noble Lords, in a concise manner the general principles of the law relating to substitution. When one puts something by way of replacement or change of another, whether a person or a thing, that would amount to substitution. The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law. Where a party is dead, he cannot physically take part any more in the proceedings. His position must necessarily be taken over by the beneficiary who inherits him and who subsequently inherits the litigation. Otherwise, the action for or against the deceased will abate unless appropriate steps are taken to substitute a living person for the deceased … Bankruptcy of one of the
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parties to a suit while the suit is pending, may also abate except where a trustee(s) takes over. Comprehensive rules are made by the various (now unified) High Court Rules which take care of such circumstances.”
(Underlining supplied)
The basis of the Appellants’ application for substitution is that there has been assignment, transmission or devolution of interest or liability of the 4th Respondent to the party sought to be substituted. In this wise, it is deposed in paragraph 3b of the Further and Better Affidavit that the party sought to be substituted for the 4th Respondent assumed both the assets and liabilities of Skye Bank PLC. They exhibited a certified copy of the Memorandum and Articles of Association of the party sought to be substituted for the 4th Respondent as Exhibit TA/4. Clause 3.1 of the said Memorandum of Association setting out the objects for which the party sought to be substituted for the 4th Respondent was established stipulates thus:
“3.1 To assume all or part only of the deposit liabilities of Skye Bank Plc.”
For the 1st Respondent and the party sought to be substituted for the 4th
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Respondent, the said Clause does not connote that the party sought to be substituted for the 4th Respondent assumed all the pending litigations involving Skye Bank PLC and that the Appellants have not shown that this present matter was one of the liabilities assumed by the party sought to be substituted for the 4th Respondent. However, it is my deferential view, that the question of part of liability not assumed by the party sought to be substituted for the 4th Respondent is entirely within the domestic domain of the party sought to be substituted for the 4th Respondent. Nothing has been produced before the Court showing the liabilities of Skye Bank PLC that were not assumed by the party sought to be substituted for the 4th Respondent pursuant to the stipulation in its objects clause. In the absence of such evidentiary proof, I am obligated to conclude that, relative to the circumstances of this matter, the party sought to be substituted for the 4th Respondent is the successor of the 4th Respondent, the precursor of Skye Bank PLC.
In concatenation, the issue for determination must indubitably be resolved in favour of the Appellants. Considering the facts
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and circumstances of this application, the Appellants placed sufficient materials before the Court in order for discretion to be exercised in their favour by a grant of the application. Accordingly, the application has merit and it is hereby granted. It is hereby ordered as follows:
1. The Appellants are hereby granted leave to substitute POLARIS BANK LIMITED for the 4th Respondent in this appeal.
2. The Appellants are hereby granted leave to amend their Notice of Appeal and Appellants Brief of Argument to reflect the name of POLARIS BANK LIMITED as the 4th Respondent in this appeal.
3. The Amended Notice Appeal and Amended Appellants Brief are to be filed within seven (7) days from today.
4. Upon service of the Amended Appellants Brief, the Respondents shall have seven (7) days from the date of service to make consequential amendments to their Respondents Brief to reflect the name of POLARIS BANK LIMITED as the 4th Respondent.
5. All subsequent processes to be filed in this appeal shall reflect the name of POLARIS BANK LIMITED as the 4th Respondent.
6. The appeal is fixed for definite hearing on 12th October 2020.
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- The Appellants are entitled the costs of this application which I assess and fix at N100, 000.00 against each of the 1st Respondent and POLARIS BANK LIMITED respectively.JOSEPH SHAGBAOR IKYEGH, J.C.A.: I have read the succinct ruling prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., with which I agree with nothing useful to add.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading the Ruling prepared and rendered by my Lord and Learned brother OGAKWU JCA, I endorse the reasoning and conclusion and adopt the Ruling as mine, I also abide by all consequential Orders including the order on costs.
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Appearances:
Ms. F. O. Abiodun with him, C. A. Osigwe, Esq.) For Appellant(s)
Olamide Balogun, Esq., with him, Ms. O. Ajeh & Ms. S. Oboh) for the 1st Respondent.
Ms. S. Ovweriavwose for the 2nd Respondent.
J. Fabilola, Esq., (with Ms. Amaka Amaeshi & Bayo Olusanya, Esq.) for the 6th Respondent.
Olanrewaju Jolaoso, Esq., for the Party sought to be substituted for the 4th Respondent
No representation for the 3rd, 4th & 5th Respondents. For Respondent(s)