LAJIBAM AUTO & AGRIC CONCERNS LTD & ANOR V. UNITED BANK FOR AFRICA PLC & ORS
(2013)LCN/5977(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2013
CA/IL/24/2011
RATIO
SECTION 15 OF THE COURT OF APPEAL ACT LFN 2004
The applicants’ application, which is rooted in the prescriptions of Section 15 of the Court of Appeal Act, Cap, C. 36, Laws of the Federation of Nigeria, 2004 and Orders 4 rules 1 and 10, 7 rule 1 and 15 rule 2 of the Court of Appeal Rules, 2011, is, deeply, located in the province/precinct of an equitable remedy.
That, automatically, means that it evinces this court’s judicial and judicious exercise of discretion. In law, discretion, which has become a common place in adjudications, is the right or power of a judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P, Plateau State (2008) 8 NWLR (Pt.1089) 298 at 318; Ajuwa V. SPDCN Ltd. (2011) 18 NWLR (Pt.1279) 797.PER OBANDE FESTUS OGBUINYA, J.C.A.
DISCRETION:WHEN A PARTY IS MAKING AN APPLICATION, WHAT MUST BE FURNISHED TO THE COURT
Since the application falls, squarely, within the realm of discretion, the law compels the applicants to furnish this court, if they must earn its favourable discretion, with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. The reason is simple. A court of law does not dish or dash out its discretion in vacuo, material facts being, invariably, the desiderata for such judicial exercise, see Dongtoe as Civil Service Commission, Plateau State (2001) 9 NWLR (Pt.717) 132; Menakaga V. Menakaya (2011) 16 NWLR (Pt.738) 203; Ebe V. C.O.P (2008) 4 NWLR (Pt.1076) 189; Ifekandu V. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; In Re: Yar’Adua (2011) 17 NWLR (Pt.1277) 567. PER OBANDE FESTUS OGBUINYA, J.C.A.
JOINDER: APPLICATION FOR JOINDER: WHAT THE COURT MUST CONSIDER WHEN GRANTING SUCH AN APPLICATION
In this genre/specie of application for joinder of parties to an action, the court is enjoined to ask itself certain questions which were invented by Oputa, JSC, in the case of Green V. Green (1987) 3 NWLR (Pt.61) 480/ (1987) 2 NSCC (Vol. 18) 1115 at 1127 to wit:
1. Is the cause of action or matter liable to be defeated by non-joinder?
2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party… is added as defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter.
See, also, Ajayi v. Jolayemi (Supra); Anyanwoko V. Okoye (2010) 5 NWLR (pt. 1188) 497.PER OBANDE FESTUS OGBUINYA, J.C.A.
JOINDER: APPLICATION FOR JOINDER: WHAT PARTIES MUST SHOW IN ORDER TO E GRANTED AN APPLICATION IN JOINDER
Bearing these considerations in mind, the stubborn question is have the applicants shown cogent reasons to warrant joining the Corporation and the Bank as co-respondents in this appeal? To begin with, the applicants’ trump card is the PURCHASE AND ASSUMPTION AGREEMENT of 11/08/2006. It is a tripartite agreement, between the Corporation, the first respondent and the Bank, attached to the first respondent’s application of 13/11/2012 (yet to be argued) as exhibit A. It is correct, that the present applicants did not attach it to the application, but merely adopted it by allusion and reference to it in their supporting affidavit. Be that as it may, the exhibit A is a document in this court’s file and, ipso facto, before it in this appeal. In this wise, the law gives this court the nod to take judicial notice of it in this application, as a process in its record, even though not admitted or attached as an exhibit in this application, see Oyewole V. Akande (Supra); I.F.A. Int’l Ltd. v. L.M.B. Plc (supra); Agbo v. State (2006) 6 NWLR (pt.977) 545; Agbareh v. Mimra (2008) 2 NWLR (pt. 1071) 378; Nwora v. Nwabueze (2011) 17 NWLR (pt. 1277) 699.PER OBANDE FESTUS OGBUINYA, J.C.A.
PARTY: NECESSARY PARTIES: WHO IS A NECESSARY PARTY
In the eyes of the law, a necessary party to a proceeding is a person whose presence and participation therein is essential for an effective and complete determination of the claim before the court, see Green V. Green (Supra); Babageju V. Ashamu (supra); Cotecna. Int’l Ltd V. Churchgate (Nig) Ltd (2010) 18 NWLR (pt.1225) 546; P.W.T (Nig.) Ltd V. J.O.B Int’l (supra)/(2010) 19 NWLR (Pt.1226) 1.PER OBANDE FESTUS OGBUINYA, J.C.A.
JOINDER: THE MAIN REASON FOR A JOINDER
Moreover, the main raison d’etre for joinder of a party to an action was propounded by Delvin, J. in the English case of thus:Amon V. Rapheal Tuck and Sons Ltd (1956) 1 All E.R 273/(1956) 1 Q.B.D, 357 at 380
The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, there must be a question in the action which cannot be effectively and completely settled unless he is a party.PER OBANDE FESTUS OGBUINYA, J.C.A.
JUSTICE
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
1. LAJIBAM AUTO & AGRIC CONCERNS LTD.
2. CHIEF D.O. BAMIDELEAppellant(s)
AND
1. UNITED BANK FOR AFRICA PLC.
2. NIGERIA DEPOSIT INSURANCE CORPORATION
3. CENTRAL BANK OF NIGERIARespondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 23/10/2012, the appellants/applicants prayed this court for:
1. AN ORDER of this Honourable Court joining NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) and CENTRAL BANK OF NIGERIA as the Co-Respondents in this appeal.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
GROUNDS OF THE APPLICATION
1. The transaction that led to this appeal took place sometimes in 1996 when the then TRADE BANK PLC was still in existence.
2. Due to the restructuring and consolidation of finance house introduced by the Central Bank of Nigeria, Nigeria Deposit and Insurance Commission was appointed by the order of court to liquidate the asset of TRADE BANK PLC.
3. UNITED BANK FOR AFRICA, PLC who acquired part of the asset of the TRADE BANK PLC was initially substituted for Trade bank as Respondent in this appeal by the order of this Honourable Court made on the 30th January, 2012 on the application of the appellants but United Bank for Africa later brought en application for the court to strike out her name from the appeal as what she acquired from TRADE BANK PLC did not include recovery of loan but to only settle TRADE BANK PLC depositors.
4. United Bank for Africa attached “Purchase and Assumption Agreement” between her, Nigeria Deposit Insurance Corporation, and Central Bank of Nigeria and stated that from that Agreement the only person that can sue and be sued in respect of Trade Bank Plc are parties to be joined.
5. There is need to join Nigeria deposit Insurance Corporation and Central Bank of Nigeria as Co-Respondents in this appeal so that there will be proper and necessary parties before the court.
6. The joinder will enable the court to effectively and efficiently determine this appeal justly.
7. This Honourable Court has unfettered power to grant this application.
The application, which was brought pursuant to orders 4 rules 1 and 10, 7 rule 1 and 15 rule 2 of the Court of Appeal Rules, 2011, Section 15 of the Court of Appeal Act and inherent jurisdiction of this court, is supported by a 5- paragraph affidavit deposed to by Tayo Fatola, a litigation clerk in the chambers of the applicants’ counsel. There is a 5-paragraph counter-affidavit filed by the respondent, United Bank for Africa Plc, on 06/12/2012. There is another counter-affidavit of 4 paragraphs filed by the first party to be joined, the Nigeria Deposit Insurance Corporation, abridged to “the Corporation” herein, on 23/11/2012. The second party to be joined, the Central Bank of Nigeria, abbreviated to “the CBN” hereunder, filed a 10-paragraph counter-affidavit on 19/11/2012.
Sequel to the stiff opposition launched by the Corporation and the Bank, by dint of their counter-affidavits, this court, on 20/11/2012, directed parties to file written addresses. In due compliance with that directive, parties filed and exchanged their written addresses. The application was heard on 17/01/2013. In that regard, learned counsel for the appellants, S.T Abubakar, Esq., adopted the applicants’ written address, filed on 27/11/2012, as representing his arguments for the application. In the same vein, learned counsel for the respondent, Adedayo Adediji, Esq., adopted the respondent’s written address, filed on 06/12/2012, as representing his arguments for the application. On the other hand, learned counsel for the Corporation, A.M Mohammed, Esq., intimated the court that it, the corporation, did not file any written address. The learned counsel for the Bank, Y.A Dikko., Esq., adopted the Bank’s written address, filed on 06/12/2012, as forming his arguments against the application. Learned counsel furnished the court with a list of additional authorities dated 11/12/2012.
In arguing the application, learned counsel for the applicants, via the written address, submitted that the effect of paragraphs 4 of the applicants’ affidavit is that the Corporation and the Bank are necessary parties to the appeal. Learned counsel posited that his submission is corroborated by exhibit A attached to the application filed by the respondent on 13/11/2012. He urged the court to look at and rely on the said exhibit A since a court has the inherent power to look at document in its file while writing judgment despite the fact that same was not tendered and admitted as exhibit. He place reliance on the cases of Oyewole V. Akande (2009) 15 NWLR (p. 1163) 119 at 148 and I.F.A. Int’l Ltd V. L.M.B. Plc (2005) 9 NWLR (Pt. 930) 274 at 291 to support his submission. He referred to the cover Page, pages 6 and 21 of that exhibit A and maintained that the Corporation and the Bank played salient roles in the life of the Trade Bank Plc, a defendant bank whose assets were taken over by the respondent.
Learned counsel contended that the appeal would not be completely determined without the presence of the two parties sought to the joined as the applicants must make reference to them which would necessitate their being entitled to fair hearing and protection of their rights and interests. He relied on the case of UBA Plc. V. Osazee (2011) 7 NWLR (pt.1246) 293 at 305 and G & T Investment Ltd. V. Witt & Bush Ltd. (2011) 8 NWLR (pt.1250) 500 at 532 to support his contention. He added that joining the Corporation and Bank is necessary so as to make them bound by the result of the appeal. He cited the case of P.W.T (Nig) Ltd, V. J.B.O Int’l (2011) All FWLR (pt.564) 21 at 38 to buttress his view. He noted that the court has unfettered power to join any party to any proceedings, citing the case of F.M.S.T. V. F.M.W.H (2009) 17 NWLR (pt. 1171) 510 in support of the postulation.
He argued that the averment in the affidavit of the Bank were general denial which did not controvert the depositions in the applicants’ affidavit and so unacceptable in law, relying on the case of Sanusi Bros (Nig) Ltd. V. Cotia C.E.I.S.A (2000) 11 NWLR (pt.679) 566 at 568, F.M.S.T. v. F.M.W.H (supra). He further argued that the counter-affidavit of the corporation did not debunk the applicants’ affidavit and so the latter deemed admitted. He referred to the case of Okoebor V. Police Council (2003) 12 NWLR (pt.834) 444 at 472 to support his argument. He described the only material deposition in paragraph 4 of the Corporation’s counter-affidavit as a general or sweeping denial not recognized in law and not in keeping with the rules of affidavit evidence. In support of that postulation, he cited the case of Ogunsola v. Usman (2002) 14 NWLR (pt. 788) 636 at 657. Learned counsel, based on those submissions, prayed the court to grant the application.
For the respondent, its learned counsel urged the court to take judicial notice of the said exhibit A under Section 122(m) of the Evidence Act. He referred to pages 6, 20, 21, 22 and 23 of that exhibit A and insisted that the Corporation and Bank are saddled with the liabilities, litigations and court proceedings before and after it, exhibit A. He posited that courts would always enforce the agreement between parties as in exhibit A. He relied on the cases of Best (Nig) vs Blackwood, Hodge (Nig) Ltd & 2 Ors (2011) 1-2 SC (pt.1) 55 at 74 and Ozigi V. UBN Ltd (1994) 3 SCNJ 42 at 59. Learned counsel further urged the court to take judicial notice of Appeal No. CA/IL/35/2007 between: Dragetanos Construction (Nig) Ltd vs 1 FAB-Machis ventures Ltd 2. Nigeria Deposit Insurance Corporation wherein the NDIC was substituted for the defunct Trade bank plc by this court. Finally, learned counsel prayed the court to grant the application.
As already noted, the Corporation filed no written address either for or against the application.
On behalf of the Bank, its learned counsel submitted, per contra, that it is not a necessary party to be joined to the appeal. He stated that exhibit A, PURCHASE AND ASUMPTION AGREEMENT, on which the applicants based the application, was not based on the claim before the court, but rather in defence of the respondent. Learned counsel enumerated the conditions for joinder of a person as a necessary party as established in the cases of Green as Green (2001) FWLR (pt.76) 795; Onoge v. Odita (2008) All FWLR (pt.409) 539; Ajayi V. Jolayemi (2001) FWLR (pt. 55) 586. He persisted that those conditions were lacking in the application. Learned counsel further submitted that the Bank performed its duty under Section 40(1) of the Corporation Act in relation to the liquidation of Trade bank Plc in the exhibit A. He added that the exhibit A was never attached to the application and that the court would not rely on it. He referred to the case of Federal Mortgage Finance Ltd V. Ekpo (2005) All FWLR (Pt.2487) 1667. He insisted that the court should not take judicial notice of the said exhibit A. Learned counsel posited, in the alternative, that from the tenor and content of the exhibit A, it was the Corporation that was the liquidator of the Trade bank Plc and acquired its assets on its liquidation. He stated that the Bank has no duty towards a liquidator bank except to perform its statutory duty to the liquidator under Section 41 of the Bank Act. He maintained that the non-joinder of the Bank would not defeat the appeal, relying on the case of Babayeju V. Ashamu (1998) 9 NWLR (Pt.567) 546.
He contended that considering the applicants’ claim, there is no cause of action against the Bank. He noted that when the exhibit A is interpreted literally and as a whole, it does not crystalise into a cause of action against the Bank. He cited the case of Akinbisola v. The State (2006) 9 SCNJ 1 at 12 to support his contention. He referred to page 18 of the exhibit A and stated that it was not the duty of the Bank to liquidate the Trade bank Plc, but to provide the enabling environment for it, which would not translate to liability for the Bank. He explained that the Bank is the banker’s bank as it provides promissory note as shown in the exhibit A, citing Sections 41 and 52(1) of the Bank Act to show that it is not liable that the outcome of the appeal would not affect the Bank and it would not be bound by it. He placed reliance on the case of Rinco Construction Co. Ltd V. Veepee Industries Ltd. (2005) All FWLR (Pt.264) 816 at 825-826. He took the view that if the Bank were a necessary party, it should have been joined at the trial stage as a co-defendant. He relied on the case of Babayeju V. Ashamu (supra) to support that view.
Learned counsel argued that the applicants had not placed any facts before the court justifying specific denial and that it was their duty to prove what they asserted. He insisted that the applicants failed to put facts before the court to justify a grant of the application. He relied on Section 133 of the Evidence Act, 2011 and the case of Consolidated Breweries Plc V. Aisowieren (2002) FWLR (pt.116) 959 at 990. He posited that the Bank copiously deposed to facts why it should not be joined as a party in its counter-affidavit. Learned counsel, on the strength of those submissions, urged the court to dismiss the application.
The applicants’ application, which is rooted in the prescriptions of Section 15 of the Court of Appeal Act, Cap, C. 36, Laws of the Federation of Nigeria, 2004 and Orders 4 rules 1 and 10, 7 rule 1 and 15 rule 2 of the Court of Appeal Rules, 2011, is, deeply, located in the province/precinct of an equitable remedy.
That, automatically, means that it evinces this court’s judicial and judicious exercise of discretion. In law, discretion, which has become a common place in adjudications, is the right or power of a judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P, Plateau State (2008) 8 NWLR (Pt.1089) 298 at 318; Ajuwa V. SPDCN Ltd. (2011) 18 NWLR (Pt.1279) 797.
Since the application falls, squarely, within the realm of discretion, the law compels the applicants to furnish this court, if they must earn its favourable discretion, with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. The reason is simple. A court of law does not dish or dash out its discretion in vacuo, material facts being, invariably, the desiderata for such judicial exercise, see Dongtoe as Civil Service Commission, Plateau State (2001) 9 NWLR (Pt.717) 132; Menakaga V. Menakaya (2011) 16 NWLR (Pt.738) 203; Ebe V. C.O.P (2008) 4 NWLR (Pt.1076) 189; Ifekandu V. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; In Re: Yar’Adua (2011) 17 NWLR (Pt.1277) 567. The applicants woke up to that judicial responsibility, presentation of material facts for use by this court in the determination of their application, when they filed the 5-paragraph affidavit in support of it.
In this genre/specie of application for joinder of parties to an action, the court is enjoined to ask itself certain questions which were invented by Oputa, JSC, in the case of Green V. Green (1987) 3 NWLR (Pt.61) 480/ (1987) 2 NSCC (Vol. 18) 1115 at 1127 to wit:
1. Is the cause of action or matter liable to be defeated by non-joinder?
2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party… is added as defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the Court as defendant will be necessary in order to enable the Court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter?
See, also, Ajayi v. Jolayemi (Supra); Anyanwoko V. Okoye (2010) 5 NWLR (pt. 1188) 497.
Bearing these considerations in mind, the stubborn question is have the applicants shown cogent reasons to warrant joining the Corporation and the Bank as co-respondents in this appeal? To begin with, the applicants’ trump card is the PURCHASE AND ASSUMPTION AGREEMENT of 11/08/2006. It is a tripartite agreement, between the Corporation, the first respondent and the Bank, attached to the first respondent’s application of 13/11/2012 (yet to be argued) as exhibit A. It is correct, that the present applicants did not attach it to the application, but merely adopted it by allusion and reference to it in their supporting affidavit. Be that as it may, the exhibit A is a document in this court’s file and, ipso facto, before it in this appeal. In this wise, the law gives this court the nod to take judicial notice of it in this application, as a process in its record, even though not admitted or attached as an exhibit in this application, see Oyewole V. Akande (Supra); I.F.A. Int’l Ltd. v. L.M.B. Plc (supra); Agbo v. State (2006) 6 NWLR (pt.977) 545; Agbareh v. Mimra (2008) 2 NWLR (pt. 1071) 378; Nwora v. Nwabueze (2011) 17 NWLR (pt. 1277) 699. The contention of the Bank to the contrary, that it is a speculative document, seriously, flies in the face of the law and I will ignore it. Therefore, armed, with the licence of the law, I will utilize the said exhibit A in attending to the application.
I have read the copious exhibit A with a fine tooth comb. In the recital of that triumvirate agreement, the corporation was ordered by the Federal High Court, Lagos Division, on 31/03/2006, to conduct the winding up of the business and affairs of the Trade Bank Plc and all its assets and liabilities were vested in the Corporation. It is, also, mentioned, and rightly too, that the Corporation has the statutory responsibility to realize the assets and settle liabilities of the defunct Trade Bank Plc. As can be gleaned from the statement of claim in the lower court, found on pages 36-37 of the printed record, the erstwhile Trade Bank Plc claimed certain sum of money as debt arising from loan and overdraft facility it granted to the applicants. The said distressed Trade Bank Plc. obtained judgment against the appellants on 30/06/2009 and the appeal germinated from that decision.
Since the Trade Bank Plc was dead, in the commercial sense of it, and the Corporation became the repository and custodian of its assets and liabilities, the appeal, an offspring of the aforementioned claim, would be defeated without the joinder of it, the Corporation. It is axiomatic, premised on the agreed and statutory relationship between the defunct Trade Bank Plc and the Corporation highlighted above, that it will not be possible to adjudicate over the appeal without the addition of the Corporation as a party. Indeed, the Corporation should have been joined in the action the moment the Trade Bank Plc closed down banking business and its banking licence withdrawn by the Bank. The reason is plain. By virtue of the provision of Section 4(j) of the Nigerian Deposit Insurance Corporation Act, Cap. N102, Laws of the Federation of Nigeria, 2004, the Corporation became a statutory receiver of the assets of the Trade Bank Plc upon its failure.
A conglomeration of these reveals that the Corporation is a necessary, not a desirable, party to the matter.
In the eyes of the law, a necessary party to a proceeding is a person whose presence and participation therein is essential for an effective and complete determination of the claim before the court, see Green V. Green (Supra); Babageju V. Ashamu (supra); Cotecna. Int’l Ltd V. Churchgate (Nig) Ltd (2010) 18 NWLR (pt.1225) 546; P.W.T (Nig.) Ltd V. J.O.B Int’l (supra)/(2010) 19 NWLR (Pt.1226) 1. I must hasten to place on record that these analyses do not in the least affect and dovetail with the Bank as to make it a necessary party to the appeal. The Bank was never appointed the liquidator of the now non-existent Trade Bank Plc as to be the receptacle of its assets and liabilities. It merely performed its statutory duty of revocation of its banking licence as donated to it by Section 12 of the Bankers and Other Financial Institutions Act, Cap. 83, Laws of the Federation of Nigeria, 2004. This is further solidified by the fact that it is not the legality or otherwise of the revocation of the licence of the Trade Bank Plc that is the subject-matter of the appeal.
Moreover, the main raison d’etre for joinder of a party to an action was propounded by Delvin, J. in the English case of thus:Amon V. Rapheal Tuck and Sons Ltd (1956) 1 All E.R 273/(1956) 1 Q.B.D, 357 at 380
The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, there must be a question in the action which cannot be effectively and completely settled unless he is a party.
Needless to say that, that cardinal principle of law has been, wholly, accepted and assimilated in the Nigerian legal system, see Babayeju V. Ashamu (supra); Rinco Const. Co. V. Veepee Ind. Ltd (supra)/(2005) 9 NWLR (pt.929) 85; Carrena v. Akinlase (2008) 14 NWLR (Pt.1107) 262; P.W.T (Nig.) Ltd V. J.B.O.I Int’l (supra). Going by the dissected, relationship between the Corporation and the failed Trade Bank Plc., it is obvious that the Corporation must one way or the other have cause to deal with whatever is the ultimate outcome of the applicants’ appeal. On account of this, the Corporation will be bound by the result of the appeal. It follows that the controversy in the matter cannot be determined effectually and completely until it is made a party thereto. This is made more imperative in that a court of law cannot make an order binding a person who is not a party to a proceeding before it. Such a judgment, even if made by default, cannot stand, see Anyanwoko v. Okoye (supra); Cotecna Int’l Ltd V. Churehgate (Nig) Ltd (supra).
I must observe, pronto and for clarity; that while there are good reasons necessitating the joinder of the Corporation as x-rayed above, those reason do not hold good for the Bank. Put simply, for want of any correlation or connection between the Bank and the assets and liabilities of the Trade Bank Plc, there is no legal justification, apparent or latent, to warrant the joinder of the Bank as a party to the appeal.
Above all, the Corporation, in its infinite wisdom, did not file any written address in keeping with the directive of this court. The law is settled, beyond any peradventure of doubt, that where an opponent fails or neglects to respond to arguments of his/its adversary in a brief or oral presentation before a court, the defaulting party is taken as having admitted all the points raised by the other party. This hallowed principle of law has received the imprimatur of the Supreme Court, see Okongwu V. NNPC (1989) 4 NWLR (Pt.115) 296; Nwankwo V. Yar’Adua (2010) 12 NWLR (PT.1209) 518. Given this sanctified rule of law, I hold the view that the failure of the Corporation to react to or counter the submissions of the applicants is a costly one to its stance. It, clearly, demonstrates that it has conceded, whole heartedly, to the arguments of the applicants in the application. This is in addition to the cold fact that it’s terse and feeble 4-patagraph counter-affidavit is impotent to douse or deflate the weighty assertions in the applicants’ affidavit. These, pointedly, show that the Corporation is not averse to the application.
In the light of the foregoing, I answer the question posed earlier thus: There are impregnable reasons to join the Corporation as a co-respondent to this appeal, but none to warrant the joinder of the Bank.
On the whole, having regard to the reasons advanced heretofore, buttressed by legal authorities, I find the applicants’ application partially meritorious. It succeeds in part. Consequently, I hereby order: (a) That the Nigerian Deposit Insurance Corporation be and is hereby joined as a co-respondent to this appeal and it shall be served with all the already filed processes. (b) That all subsequent processes to be filed in the appeal shall reflect the name of the Nigerian Deposit Insurance Corporation as a co-respondent. (c) That the Central Bank of Nigeria is not joined as a co-respondent to this appeal. (d) That parties bear their respective costs of prosecuting and defending the partially successful application.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft, the ruling just delivered by learned brother Ogbuinya JCA, and I agree that there is need to join the Nigeria Deposit Insurance Corporation (NDIC) that took over the assets and liabilities of Trade Bank PLC before its acquisition by the Respondent. This is so because the appeal can not be effectually and completely determined without making the Corporation a party to the appeal, since it has answers to some of the contents of the agreement leading to the acquisition.
See Green v. Green (1987) 3 NWLR (pt. 61) 480.
My learned brother has adequately dealt with all the issues raised by parties in this application. I therefore have nothing useful to add. Accordingly the application to join the NDIC is hereby granted, while I decline to join the Central Bank of Nigeria.
I abide by the order made in respect of cost.
TIJJANI ABUBAKAR, J.C.A.: My brother Obande JCA made available to me in advance copy of the ruling just delivered. I am in absolute agreement with his reasoning and conclusion, especially where he said, the Corporation will be bound by the result of the appeal, this is the position in seemingly endless decisions.
The reason for making a person party to an action is that he should be bound by the result of the action, consequently, the question to be settled in the action must be one which cannot be effectually and completely settled unless he is a party see PANALPINA WORLD TRANSPORT LTD V. J. B. OLANDEEN INT & ORS. SC 30/2003. This application having been found partially meritorious, I also order that the Corporation be joined.
Parties shall bear their respective costs.
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Appearances
S.T. Abubakar, Esq.For Appellant
AND
Adedayo Adediji, – Esq. (with him, E.T. Adeyemi, Esq.)
A.M Mohammed, Esq. for the Corporation.
Y.A. Dikko, Esq. (with him, K. Odetokun, Esq., A.S. Asonibare, Esq. and B. Mohammed, Esq.) for the Bank.For Respondent
