MAINSTREET BANK LIMITED v. DEBORAH MAIWADA (2017)

MAINSTREET BANK LIMITED v. DEBORAH MAIWADA

(2017)LCN/10180(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of July, 2017

CA/J/131M/2017(R)

RATIO

AFFIDAVIT: THE EFFECT OF UNDENIED DEPOSITIONS IN AN AFFIDAVIT

It is trite that where deposition in an affidavit are not denied by way of counter affidavit, those depositions are generally deemed admitted and the Courts are entitled to act thereon. See C. P. C. V. LADO (2011) 14 NWLR (PT.1266) 40 at 89. PER AHMAD OLAREWAJU BELGORE, J.C.A.

CAPACITY TO SUE AND BE SUED: THE POSITION OF THE LAW ON THE DEATH OF A PARTY TO AN APPEAL

The law is settled that a dead party cannot sue or be sued. A dead party cannot seek relief from Court. Where an appeal subsists, the law stipulates that a party to the appeal may apply to substitute another person for the dead party or any other person applying to be added to the appeal or to substitute the dead party. That is the tenure of the Rule 2 of Order 15, I have underline the relevant provisions of the rule to underscore the real import of the provisions of the rule. It is a surviving party in a subsisting appeal another person not being a party in the appeal that can apply to be added to the appeal or to be substituted for the dead party. See the dictum of Oputa, JSC in NZOM V. JINADU (Supra) where he had this to say:

“It is true that the dissolution of legal person is analogous to the death of an ordinary human person. Now dead Men are no longer legal person in the eye of the law as they have laid down their legal personality with their lives at death. Being destitute of rights or interest they can neither sue nor be sued.”

Alio see Ogunbiyi, JSC in A. P.C. V. I. N. E. C. (Supra) where His Lordship held that:

“I am in complete agreement and one with the counsel for the 2nd and 3rd respondents that at the time the purported notice of appeal was filed, the appellant herein was long dead, ceased to exist and had neither legal existence nor vires to file or authorise the filing of the appeal.”

The same is true of the situation in the instant application. Applicant herein is long dead, he can neither file an application for extension of time within which to do anything in this case nor does he possess the vires to authorise the filing of the application. In the light of the foregoing, it is apparent that this application is incompetent. As it has become an academic exercise to consider the other prayers on the motion paper, I will not embark on such a fruitless exercise. PER AHMAD OLAREWAJU BELGORE, J.C.A.

JUSTICES

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

MAINSTREET BANK LIMITED Appellant(s)

AND

DEBORAH MAIWADA Respondent(s)

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Lead Ruling): This motion dated the 31st day of March, 2017 and filed on the 6th day of April, 2017, pray for:-
1. AN ORDER of this Court further extension of time granted in its Ruling of 29th day of June, 2016 within which the Applicant may file a Notice of Appeal against the final judgment of the National Industrial Court Jos per Hon. Justice R. H. Gwandu delivered on the 4th day of March, 2015 in Suit No. NICN/JOS/26/2013.
2. AN ORDER granting leave to substitute SKYE BANK PLC for MAINSTREET BANK LIMITED.
3. AND for any other or further order the Court may deem necessary to make in the circumstances of this court (Sic).

The application is predicated on the following grounds:
A. The Appellant/Applicant has no Notice or knowledge of the Order of this Honourable Court made on the 29th day of June, 2016 granting it leave to file a Notice of Appeal within 14 days until the Friday, the 2nd of September, 2016 after the said 14 days had elapsed.
B. The assets and liabilities of the Appellant/Applicant have been taken-over by SKYE BANK PLC.
C. By reason of

the take-over, MAINSTREET BANK LIMITED has ceased to exist.
D. The leave of this Honourable Court is required for the substitution of a dead party in an action which survives the parties thereto.
E. That the law requires that notice of death of a party be brought to the Court and steps taken to substitute the living for the dead so that proper parties will be before the Court.

An 8 paragraph affidavit was deposed to in support of the motion. Paragraph 4 (a) to (n); 5 (a) to (e); and 6 of the supporting affidavit are germane to this application and they are hereby reproduced:-
4. That facts deposed to herein were given to me the 31st day of March, 2017 by Eloka J. Okoye, counsel handling this matter before this Court at our office, at 10.00am and I verily believe the following information he gave to me as true and correct:
a. That the Appellant/Applicant filed an Application for extension of time to seek leave as well as leave on the 29th day of July, 2015 to appeal against the judgment of the trial Court out of time.
b. That on the 13th October, 2015, the Respondent filed an application praying this Court to Order the

Appellant/Applicant to deposit the Judgment sum in an interest yielding account to be opened in the name of the Deputy Registrar of the Court of Appeal.
c. That all the Applications were heard by his Honourable Court on the 28th day of April, 2016 and the Respondent?s application was granted first, ordering the Appellant/Applicant to deposit the Judgment sum in an interest yielding account within 14 days of the Ruling while Rulings in other Applications were reserved.
d. That afterwards, nothing was heard about the ruling until about the end of August when Eloka J. Okoye called his Colleagues, S. Y. Tsok, Esq, Counsel to the Respondent asking for information on when the ruling will be ready, since S. Y. Tsok?s Office is based in Jos, within the jurisdiction of the Court.
e. That Mr. Eloka J. Okoye would have contacted the Registrar of the Court as he was used to but for the fact that he lost his Mobile Phone with all the contacts therein.
f. That S. Y. Tsok promised to check up and revert to Mr. Eloka J. Okoye, A promise he kept on Friday the 2nd of September, 2016 when he informed Eloka J. Okoye Esq. that the Court had

delivered the Ruling on the matter but could not remember the date or the content of the Ruling.
g. That on further enquiry from the Court on Monday the 5th of September 2016, Eloka J. Okoye was informed that the Court delivered a Ruling on the 29th day of June, 2016 granting leave to the Appellant/Applicant, ordering it to file its Notice of Appeal within Fourteen (14) days of the Order. The said Ruling of the 29th day of June, 2016 is herein attached as Exhibit 1.
h. That the Appellant/Applicant was not served with the Hearing Notice for the Ruling and was not aware of the Order of the Court until S. Y. Tsok Counsel to the Respondent informed Appellant/Applicant Counsel on the 2nd of September, 2016 that this Court had delivered its Ruling in the matter after the 14 days given had expired.
i. That the Appellant/Applicant did not file the Notice of Appeal within the Fourteen days given to it by the Court because it was not aware of the Ruling and the Orders of the Court.
j. That failure to file the Notice of Appeal within the Fourteen (14) days given to it by this Honourable Court was not because of disrespect to this Court, nor was it for

lack of diligence but due to lack of knowledge that the Court has delivered its Ruling.
k. That on becoming aware of the Ruling of 29th day of June, 2016 giving the Appellant/Applicant leave to file its Notice of Appeal within 14 days, the Appellant/Applicant filed a Motion on the 8th of September, 2016 for further extension of time within which to file the Notice of Appeal as ordered by this Court.
l. That about the same period, precisely on the 2nd of November 2016, the Respondent filed an Application for the leave of this Court to apply to set aside the Ruling of 29th June, 2016 on the ground that this Court lacked the jurisdiction to have entertained the Application for leave.
m. That consequent on the Respondent?s Challenge to this Court?s jurisdiction, the Appellant/Applicant?s motion for further extension of time was withdrawn to pave way for the determination of the Respondent?s challenge to jurisdiction of this Court.
n. That on the 30th of January 2017, Respondent?s Application was taken and ruling reserved which ruling was delivered on the 30th day of March, 2017 dismissing the Respondent?s

Application to set aside the Ruling of 29th June, 2016 hence this Motion. The Proposed Notice of Appeal which this Court gave leave to the Appellant/Applicant to file via the Ruling of 29th day of June, 2016 is herein attached as Exhibit 2.
5. That on the 31st day of March, 2017 Mr. Segun Tawoju, Legal Adviser of Skye Bank Plc informed me at our office at 10.00 am and I very believe the following information he gave to me to be true and correct:
a. That Skye Bank Plc has since taken over the assets and liabilities of the Appellant/Applicant.
b. That by reason of the takeover, the Appellant/Applicant [MAINSTREET BANK LIMITED] has ceased to exist.
c. That the subject matter in this suit transcends the existence of the present Appellant/Applicant as Skye Bank Plc has taken over the roles obligation of the present Appellant/Applicant.
d. That substitution of Skye Bank Plc for Mainstreet Bank Limited in necessary to keep the Appeal/Application alive.
e. That leave of this Court is required before the substitution will be effective.
6. That interest of justice demands that this application be granted so that proper parties would be

before the Court and the Appeal would be heard on the merit.

?The Respondent deposed to a Counter Affidavit in opposition to the motion. It is a 21- Paragraph counter affidavit formally challenging the propriety and competence of this application. Paragraphs 2 to 20 of the counter affidavit are relevant and are hereby reproduced:
2. That I am a trained Banker and had opportunity of working originally with the defunct Afribank Nig Plc at its Katako Branch office in Jos-South Local Government Area of Plateau State.
3. That I know as a fact that the defunct Afribank Nig Plc acquired by the Appellant/Applicant sometime in 2011.
4. That following the acquisition of the defunct Afribank Nig Plc by the Appellant/Respondent, I was offered employment by the Appellant/Respondent vide a letter dated August 5, 2011.
5. That following the unwarranted summary dismissal of my employment with the Appellant/Respondent vide a letter dated October 31, 2011, I filed an action before National Industrial Court, Jos in Suit No. NICN/JOS/26/2013 challenging the said dismissal.
6. That after full trial, the National Industrial Court, Jos delivered Judgment

in my favour on 4th March, 2015.
7. That I know as a fact that the case before the National Industrial Court was not a Fundamental Human Rights case neither was the Judgment of the lower Court based on Enforcement of Fundamental Human Rights.
8. That I know as a fact that by a motion on Notice dated the 13th day of July, 2015 but file on 29th July, 2015, the Appellant/Applicant inter alia sought the LEAVE of this Honourable Court to appeal against the final decision of the National Industrial Court, Jos delivered on 4th day of March, 2015 in Suit No. NICN/JOS/26/2013.
9. That I know as a fact that I opposed the said Motion of the Appellant/Applicant through my Solicitors, AKUBO & CO whereupon Counter-Affidavit was filed on 13th October, 2015 in opposition thereof.
10. That I know as a fact that the Motion of the Appellant/Applicant was subsequently argued before this Honourable Court on 28th April, 2016 after which the Ruling was reserved.
11. That I know as a fact that the Ruling in respect of the said Application was delivered by this Honourable Court on 29th June, 2016, whereupon the Appellant/Applicant was given 14 days within

which to file an appeal against the final decision of the National Industrial Court, Jos delivered on 4th day of March, 2015 in Suit No. NICN/JOS/26/2013.
12. That I know as a fact that the Appellant/Applicant did not file an appeal within 14 days as ordered by this Honourable Court on 29th June, 2016.
13. That I have seen and read the Motion on Notice dated the 31st day of March, 2017 but filed on 6th April, 2017 together with the Affidavit in support thereof.
14. That from what I have seen and read in the said Motion and the Affidavit in support, it is very clear that the Appellant/Applicant has not made full disclosures as expected having regard to the need to place necessary materials before the Honourable Court in the consideration of its application.
15. That even though one Mr. Segun Tawoju, Legal Adviser of SKYE BANK PLC is said to have informed the deponent in the Affidavit in support of the application at paragraph 5 thereof that MAINSTREET BANK LIMITED has ceased to exist on the ground that it has been taken over by SKYE BANK PLC, the said Mr. Segun Tawoju as well as Appellant/Applicant for reasons best known to them deliberately

withheld information regarding when and how SKYE BANK PLC took over MAINSTREET BANK LIMITED.
16. That by reason of paragraph 15 above, I was constrained to conduct discreet inquiry regarding when and how SKYE BANK PLC took over MAINSTREET BANK LIMITED.
17. That from the inquiry I conducted including but not limited to search on the internet regarding when and how SKYE BANK PLC took over MAINSTREET BANK LIMITED, I can confirm the following facts:
(a) That about three (3) months after Judgment was delivered in my favour on 4th day of March, 2015 in Suit No. NICN/JOS/26/2013 by the National Industrial Court, Jos, SKYE BANK PLC took over MAINSTREET BANK LIMITED.
(b) That as a matter of fact, on June 10, 2015, the shareholders of SKYE BANK PLC unanimously endorsed the acquisition of MAINSTREET BANK LIMITED by SKYE BANK PLC. The relevant document downloaded from the internet to this effect on 19th April, 2017 is attached hereto and marked as Exhibit R1.
(c) That after the acquisition of MAINSTREET BANK LIMTIED by SKYE BANK PLC, the name of the former was replaced with the latter in all the branches across the nation.
(d) That to the

knowledge of the Appellant/Applicant and its counsel, MAINSTREET BANK LIMITED ceased to exist since June 10, 2015.
(e) That as at 29th day of July, 2015 when the Appellant/Applicant sought LEAVE of this Honourable Court to appeal against the final decision of the National Industrial Court, Jos delivered on 4th day of March, 2015 in Suit No. NICN/JOS/26/2013, the Appellant/Applicant was no longer in existence.
(f) That in the same token, as at 29th June, 2016 when this Honourable Court granted LEAVE to the Appellant/Applicant to appeal against the final decision of the National Industrial Court, Jos delivered on 4th day of March, 2015 in Suit No. NICN/JOS/26/2013 within 14 days, the Appellant/Applicant was no longer in existence.
(g) That as at now, there is no Bank by name MAINSTREET BANK LIMITED capable of seeking relief before this Honourable Court.
18. That I am informed by S. Y. Tsok, Esq. of Counsel on Thursday, the 21st day of April, 2017 at about 11:00am in the office of AKUBO & CO at EBENEZER PLAZA, No. 4 Apollo Crescent, Jos and I verily believe him to be true as follows:
(a) That Appeal No. CA/J/118M/2015 fixed on the

Motion of the Appellant/Applicant is misleading more so that there is no pending appeal in this case.
(b) That paragraphs 4(d), (f) and (h) of the Affidavit in support of the Motion are diversionary.
(c) That Paragraphs 4(e), (i), (j), (m) as well as paragraphs 6 and 7 of the Affidavit in support of the application of the Appellant/Applicant are not true.
(d) That the earlier Motion of the Appellant/Applicant filed on 8th of September, 2016 for Extension of time within which to file the Notice of Appeal was withdrawn by Mr. Eloka J. Okoye of Counsel on 30th November, 2016 for being incompetent consequent upon which same was struck out by this Honourable Court.
(e) That the Motion of the Appellant/Applicant dated the 31st day of March, 2017 but filed on 6th April, 2017 is not competent.
19. That the application of the Appellant/Applicant is highly prejudicial to my interest.
20. That it will not be in the interest of justice to grant the application of the Appellant/Applicant.

Upon the receipt of the counter affidavit, the Applicant filed a further and better affidavit in support of the motion, and paragraphs 6 (a) to (f) to

12 thereof read as follows:-
6. That contrary to paragraph 7 of the Counter Affidavit, this same issue was raised by the Respondent in her motion that was dismissed on the 30/3/2017 by this Honourable Court.
a. That the Respondent?s deposition in paragraph 15 of her Counter Affidavit is not correct. That neither Mr. Segun Tawoju nor the Appellant/Applicant withheld any information in this matter.
b. That the alleged confirmation by the Respondent of facts she deposed to in Paragraph 17 of her Affidavit is a figment of her imagination and absolutely not correct.
c. That the Appeal No. CA/J/118M/2015 fixed on the Motion is not misleading but the exact number assigned by this Court to the APPELLANT/APPLICANT?S Application for leave to appeal filed on the 29th day of July 2015 which Application was granted on the 29th day of June 2016.
d. That the Registry to this Honourable Court can always give another number to the motion if the one relied upon by the Applicant is no longer valid.
e. That contrary to the Respondent?s deposition in paragraph 18, particularly its subparagraph d, the Appellant/Applicant?s

earlier motion filed on the 8th day of September 2016, for further extension of time was withdrawn, not because of incompetence as falsely stated by the Respondent but was to pave way for the determination of the Respondent? Application Challenging the Jurisdiction of this Court which said aforementioned Application of the Respondent was dismissed for lacking in merit by this Court on the 30th day of March, 2017.
f. That the Appellant/Applicant?s Motion dated on the 31st day of March, 2017 but filed on the 6th day of April, 2017 is competent.
7. That contrary to the Respondent?s deposition in paragraph 19 of her Counter Affidavit, this Application is brought in furtherance of the Leave granted to the Appellant/Applicant to file its Notice of Appeal within 14 days of the Order so that this Court will hear the Appeal on the merit.
8. That it will be in the interest of SUBSTANTIAL JUSTICE that this Application is granted.
9. That the hearing of this matter on its merit will enable the Honourable Court give direction on the judgment sum deposited with the Registry of this Honourable Court by the Appellant since 28/4/2016.<br< p=””

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10. That all the Applicant?s processes like Notice of Appeal, Appellant?s Brief of Argument has been ready before the Respondent brought her unmeritorious motion challenging the jurisdiction of this Honourable Court.
11. That all the objections of the Respondent are calculated at frustrating the hearing of the substantive Appeal on its merit and thereby depriving the Applicant from exercising its constitutional right of Appeal.
12. That the game plan of the Respondent is to collect the judgment sum in the custody of this Honourable Court through technicalities without the determination of the appeal on its merit.

?And finally, the Respondent has deposed to a further and better counter affidavit with an exhibit, i.e. Exhibit R2 attached to paragraph 7 thereof. Paragraphs 6 to 14 are reproduced:-
6. That paragraph 7 of my Counter-Affidavit deposed to on 27th April, 2017 is very much vital to the determination of the Application of the Appellant/Applicant contrary to paragraph 6 to the Further and Better Affidavit of the Appellant/Applicant of 2nd May, 2017.
7. That I stand by paragraph 15 of my Counter-Affidavit deposed to on

27th April, 2017 more so that the Appellant/Applicant, Kemi Esene (Mrs.) who deposed to the Further and Better Affidavit on 2nd May, 2017 as well as Mr. Segun Tawoju have all refused to disclose to this Honourable Court relevant information regarding when and how SKYE BANK PLC took over MAINSTREET BANK LIMITED. An important letter dated 10/5/2016 from learned Counsel to the Applicant relevant to this issue is attached as Exhibit ?R2?.
8. That contrary to paragraph 6(b) of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017, I stand by paragraph 17 of my Counter-Affidavit of 27th April, 2017 especially as the Appellant/Applicant, Kemi Esene (Mrs.) who deposed to the Further and Better Affidavit on 2nd May, 2017 as well as Mr. Segun Tawoju have not given any specific contrary information to disprove the facts contained in paragraph 17 of my Counter-Affidavit in question.
9. That contrary to paragraph 6(c) of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017, Appeal No. CA/J/118M/2015 fixed on the Motion of the Appellant/Applicant dated the 31st day of March, 2017 is

very much misleading as there is no appeal in this case warranting Appeal number.
10. That I know as fact that paragraph 6(e) of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017 regarding the reason for the withdrawal of Appellant/Applicant?s earlier Motion filed on 8th day of September, 2016 does not represent the correct position of things especially as Kemi Esene (Mrs.) who deposed to the said Further and Better Affidavit on 2nd May, 2017 was not present in Court on 30th November, 2016, let alone knowing what exactly happened.
11. That I know as a fact that paragraph 18(d) of my Counter-Affidavit deposed to on 27th April, 2017 to the effect that the earlier Motion of the Appellant/Applicant filed on 8th September, 2016 for extension of time within which to file Notice of Appeal was withdrawn by Eloka J. Okoye of Counsel on 30th November, 2016 for being incompetent.
12. That contrary to paragraph 9 of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017, there is no prayer in the Motion of the Appellant/Applicant for direction of the Honourable Court with respect

to the Judgment sum paid to the Registry of this Honourable Court.
13. That I know as a fact that the Appellant/Applicant has never filed any valid Notice of Appeal in this case, let alone preparing Appellant?s Brief of Argument as claimed in paragraph 10 of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017.
14. That contrary to paragraphs 11 and 12 of the Further and Better Affidavit of the Appellant/Applicant deposed to on 2nd May, 2017, there is presently no substantive appeal in this case, let alone being heard on the merits.

The Applicant has identified three issues for determination in this application viz:-
1. Whether this Honourable Court evidence with powers to grant the application for extension of time within which to comply the its ruling of 29th day of June, 2016.
2. Whether this Honourable Court in the interest of Justice can order for substitution of a juristic person that has been dissolved with the party that has taken over its assets and liabilities.
3. Whether mere typographical error in the name of a party can effect or vitiate the competence of an application when

there is nothing on the face of the records to show that the Court or the other party has been misled.
?
On the part of the Respondent, two issues are tabled for determination in this application, namely:
1. Whether Motion on Notice dated the 31st day of March, 2017 but filed on 6th April, 2017 by MAINSTREET BANK LIMITED, a party that is admittedly dead is competent.
2. Whether having regard to the entire circumstances of this case, this Honourable Court is not otherwise functus officio and as such lacks the jurisdiction to grant the Application of the Appellant/Applicant, particularly as the Appellant/Applicant has not placed sufficient materials before the Court for appropriate exercise of discretion regarding the Application.

This ruling will be based on the three issues formulated by the Applicant.
?
On issue one, learned counsel for the Applicant submits that where the time ordered by the Court for the performance of an act by a litigant has lapsed, the Court has an inherent power to extend the time for the performance of the act where a good and substantial reason for failure to comply within the time prescribed has been shown by the

Applicant Reliance is placed on Section 24 (4) of the Court of Appeal Act and Order 6, Rule 9 (1) and (2) of the Court of Appeal Rules, 2016 hereinafter referred to as the Rules. Also cited is EJIKEME V. IBEKWE (1997) 7 (PT. 514) 596 (Sic) at 597. It is submitted that the applicant has aptly shown in its affidavit, cogent and convincing reasons for the delay in complying with the Order of the Court made on the 29th day of June, 2016.

The reason for opposing this application as evidenced in Paragraphs 8-14 of the Respondent?s counter affidavit and particularly Paragraph 14 is not because the Respondent will be overreached by the grant of the application or because the facts deposed to by the Applicant are not correct, but because the Respondent is of the opinion that the Applicant has not placed necessary materials before the Court. It is submitted that since the Respondent is not challenging the credibility of the reasons for delay as deposed by Applicant, it is implied that she has accepted those reasons as being correct, citing in support C.P.C. V. LADO (2011) 14 NWLR (PT.1266) 40 at 89. Reference is made to Rule 27 (1) of the Rules of Professional

Conduct of Legal Practitioner on the duty of a Legal Practitioner to his fellow lawyer.

It is further submitted that this Court, in a ruling dated the 29th June, 2016, has dealt with the issue being canvased in paragraph 7 of the counter affidavit and that the Court will not sit on appeal over its own decision, citing EJIMOFOR V. NITEL [2007] 1 NWLR (PT.1014) 153 at 178. It was the same issue that the Court ruled upon on 30th day of March, 2017.

The Court is urged to resolve this issue in favour of the Applicant by granting an extension of time within which to comply with the order of the Court made on the 29th day of July, 2016.

On issue Two, it is submitted for the Applicant that this Court can substitute the dead party with the party which took over the dead party?s assets and liabilities. It is submitted that the rule simply postulates that dead men are no longer Legal Persons in the eyes of the law as they have laid down their Legal Personality at death. Reference is made to OPEBIYI V. OSHOBOJA (1976) 9 & 10 SC 195; CCB (NIG.) PLC V. O?SILVAWAX INTERNATIONAL (1999) 7 NWLR (PT.?) 97. It is submitted that it is clear that

where an appeal subsists and a party dies, the appeal will need the substitution of a living party by virtue of Order 15(1) of the Rules. Reliance is also placed on Order 15 (2) of the Rules. It is prayed that the application be granted so that the substantive matter can be heard and decided on the merit. Reference is made to the holding of Oputa, JSC in NZOM V. JINADU as quoted in CCB (Supra) that:-
?.the dissolution of Legal person is analogous to the death of an ordinary person dead men are no longer persons in the eye of the law as they have laid down their Legal Personality with their lines at death. Being destitute of rights or interest they can neither sue or be sued . I unhesitatingly add that such dead Men cannot equally appeal against decisions not in their favour nor can they respond in an appeal, attempting to sustain such decisions which, during their lifespan, favoured them. Whether at trial in the first instance Court or on appeal, dead men lack Legal existence which parties must have to give them competence.”

It is submitted for the Applicant

that it is in the light of this harsh reality the Rules clearly provides for such a lacing under Order 15. It is submitted that the purported ?findings? as contained in paragraph 17(a)-(g) of the Counter affidavit was mere opinion, speculations and false facts and the law does not allow Court to assume anything or to speculate about anything as it often time leads to miscarriage of justice, citing in support- U.T.B (NIG) V. OZOEMENA (2007) 3 NWLR (PT.1022) 487; and Section 131 of the Evidence Act, 2011.

It is finally submitted on the issue that there was only a proposal restricting of the company and not an endorsement by the shareholders of the Skye Bank Plc to acquire Mainstreet Bank Limited as strongly asserted by the Respondent. It is urged that the application be granted.

With regard to issue Three, it is conceded by the Applicant that paragraph 1 of the counter affidavit is correct, but it is submitted that the mistake in the spelling of the surname of the Respondent on the face of the Motion paper, spelt as MAIWADA instead of MAIDAWA, was a mere typographical error without more and it does not occasion a miscarriage of justice. It

is submitted that the error cannot be said to be fraudulent or intended to overreach the Respondent and it can be corrected by the Court in line with the dictum of Oputa, JSC in ADEKEYE V. AKIN-OLUGBADE (1987) 3 NWLR (PT.60) 214. Reference is also made to DR. OKONJO V. DR. ODJE & ORS (1985) 10 SC. 265; and CHIEF AKPAN V. BOB (2010) 17 NWLR (PT.1223) 421 in urging the Court not to adhere to technicality.

It is finally prayed that the application be allowed. For the Respondent, it is submitted that the grounds upon the application is predicated are relevant, especially, grounds B, C, D, and E. Respondent also relies on Paragraph 5 a, b, c, and d of the affidavit in support of the Application. It is then submitted that what is missing in the affidavits filed by the Applicant is when and how the Applicant died and how it was taken over by Skye Bank Plc.
?
It is submitted that the deponent to the two affidavits in support of the motion as well as one Mr. Segun Tawoju, the Legal Adviser of the Skye Bank Plc who informed the deponent of the all the information deposed to did not supply when Mainstreet Bank Limited cited and the date and how it was taken

over by the Skye Bank Plc. It is submitted that the death of the Applicant was reportedly confirmed in the written address by counsel for the Appellant/Applicant. It is submitted that a dead person cannot sue or be sued. Learned Senior Counsel for the Respondent finds support in the written address of the learned counsel for the Applicant where he stated thus:-
?We urge my Lords to grant our application and substitute Skye Bank Plc. the living party for Mainstreet Bank Limited party so that the substantive matter would be heard on its merit? and ?We humbly submit with the greatest respect and humility that not granting this application will be tantamount to mean the death of this appeal as a dead party cannot prosecute an appeal?

It is submitted that when the evidence of witness supports the case of his opponent against whom he purports to give evidence, the opposed can take advantage of it to strengthen his case, because this evidence against interest. Reliance is placed on OMISAODU V. ELE WUJU (2006) 13 NLWR (PT.1998) 507 at 532; and NZOM V. JINADU (1987) 1 NWLR (PT.51) 533 at 541, per

Oputa, JSC; EZENWOSU v. CHUKWU A. P. C. V. I.N.E.C. (2015) 8 NLWR (PT.1462) 531 at 565. It is submitted that flossing from all these authorities, the motion of the Appellant/Applicant dated 31st day of March, 2017 but filed on 6th April, 2017 was dead on arrival for the simple reason that he, Appellant/Applicant which is admittedly dead is incapable Section reliefs from this Court, and that not even prayer 2 avails it because by Order 15, Rule 27 the Rules, it is only an existing party to an appeal or any person who wishes to be added or substituted that can bring an application for substitution. Order 15 (Supra) forbids or fore choses a dead party from bring an application for substitution and this application is incompetent.
On the issue of an order for extension of time to comply with the Order of this Court made on the 29th day of June, 2016, it is submitted that the Appellant/Applicant failed to supply adequate and material information concerning the death of the Application as to when it died and as to how it was taken over by the Skye Bank Plc. These are material information that should have been made available to the Court and which are not

forthcoming. Reliance is placed on WILLIAMS V. HOPE RISING VOLUNTARY FUND SOCIETY (1982) ALL NLR 1 at 6.

It is submitted that the Applicant is wrong in passing the buck to the Respondent?s Counsel for its tardiness. It is submitted that by Rule 14 (4) of the Rules of Professional Conduct for Legal Practitioners, it is the duty of a lawyer employed in respect of a case to be personally present or be properly represented throughout the proceedings in Court; and by the provision of Rule 16 (1) (c), a lawyer shall not neglect a legal matter entrusted to him. It is then submitted that one would have expected the learned counsel for the Application, especially, Eloka J. Okoye Esq., who argued the application for extension of time on 28th April, 2016 to have diligently followed up and ascertain the outcome, that was not to be. It is convenient for learned counsel for Appellant to place the blame on Respondent?s Counsel for failure to inform him of the outcome of this Applicant motion.

Attention is drawn to Exhibit R2 attached to Paragraph 7 of the further and better counter affidavit which is a letter authored by the Senior Counsel for the

Applicant on the 10th day of May, 2016. It is submitted that by this exhibit, learned Senior Counsel for the Applicant was aware of the death of the Applicant and was running away from complying with Order 15, Rule (1) of the Rules of the Court because it will have a far-reaching implication on the application before the Court. It is submitted that by Exhibit R2, the learned counsel for the Applicant was aware or deemed to be aware that the Applicant was dead and hence was replaced by Skye Bank Plc. It is queried as to why Order 15, Rule 1 was not complied with and why the application for substitution was not brought until the 6th day of April, 2017, almost a year after becoming aware of the death of the Applicant. It is submitted that the most troubling aspect of the matter is, why was the application for LEAVE to file appeal moved and obtained in the name of a dead party? It is further submitted that these are crucial questions that cannot be glossed over because they go to the root of the entire Application.

It is finally urged that the application be dismissed.
?
In the Appellant/Applicant?s Reply written address, it is submitted that there

was no admission against interest.

Parties have file and exchanged written addresses intending the Applicant?s Reply on point of law.

The two substantive prayers in this application are governed by Order 6, Rules 1 and 9 (1) and (2); and Order 15, Rules 1 and 2 respectively of the Court of Appeal Rules, 2016.

Order 6, Rules 1 and 9 provides as follows:-
?6-1. Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground for the relief sought.
9.- (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribe period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of

appeal?.
Order 15, Rules 1 and 2 also provide as follows:-
?15. -1. It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party to the registrar of the Court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.
2. Where it is necessary to add to substitute a new party for the deceased, an application shall, subject to the provision of Order 4 Rule 10, be made in that behalf to the Court below or to the Court either by any existing party to the appeal or by an person who wishes to be added or substituted?.
(Underlining by me for emphasis).

While moving the application on the 22nd day of May, 2017, Eloka J. Okoye Esq., learned Counsel for the Appellant, requested that, in the consideration of this motion, Pray 2 on the motion paper be considered first.
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The application for leave to substitute Skye Bank Plc for the dead Applicant, Mainstreet Bank Limited as presented by the learned counsel for the Applicant is not free from difficult. First one has to

understand the tenure of the provisions of Order 15, Rules 1 and 2 of the Rules of the Court as earlier quoted in this ruling.

Far-reaching depositions are contained in both the counter affidavit and further and better counter affidavit. Although further and better affidavit in support of the application was deposed to the issues raised in the two counter affidavits were not seriously or adequately addressed other than to label than as ?not correct?. This approach is short of what the law demands. The affidavit in support of the motion and also the further and better affidavit fail to state when it was taken over by Skye Bank Plc. The depositions in the counter affidavit and the further and better counter affidavit concerning the death of the Applicant remain largely uncontroverted.

of the Applicant during the pendency of the application for leave to appeal. This is moreso in the light of Exhibit R2 attached to further and better counter affidavit. This Exhibit dated the 10th day of May, 2016 pre-dated the Order of this Court dated the 29th day of June, 2016, granting leave to the Applicant to appeal and with an order for the Applicant to file notice of appeal within 14 days from 29th day of June, 2016.

I believe that the death of the Applicant occurred on or about the 10th day of June, 2015 and the deposition in paragraph 17 (a) to (g) cannot be wished away by merely deposition that it is all a figment of imagination of the Respondent and that it is absolutely not correct, without stating the correct version of the facts being denied.

The law on substitution of a dead party to an appeal is very straight forward. It is governed in this Court by Order 15, Rules 1 and 2 of the Rules of Court. The relevant provisions have been set out elsewhere in this ruling. By Rule 1 of Order 15, the learned counsel for the Applicant is under a duty to inform the Court of the death of the Applicant which predated the motion filed on behalf of

the Applicant on the 29th day of July, 2015 seeking for leave to appeal the decision of the National Industrial Court delivered on the 4th day of March, 2015 in Suit No. NICN/JOS/26/2013. As it turned out, the Applicant did not file the appeal as ordered by this Court.
The application to substitute Skye Bank Plc, for a living person for Mainstreet Bank Limited, a dead person has been brought by the Applicant itself without having formally informed the Court of the death of the Applicant. This is contrary to the provisions of Order 15, Rule 1 of the Rules of the Court. The information given to the Court by deponent of the affidavit in support of the motion and of the further and better affidavit is terse as it did not state when Applicant ceased to exist and also when and how it was taken over by Skye Bank Plc. It looks as if this Court was deceived into granting leave to appeal on the 29th day of June, 2016. This is so because the deponent to the affidavit in support of that motion dated the 13th day of July, 2015 but filed on the 29th day of July, 2015 did not disclose to this Court, the fact of non-existence of the Applicant as at that date. As it now

turned out, it was a dead person that made the application for leave to appeal and which was bona fide granted by this Court on the 29th day of June, 2016.

destitute of rights or interest they can neither sue nor be sued.?.
Alio see Ogunbiyi, JSC in A. P.C. V. I. N. E. C. (Supra) where His Lordship held that:
?I am in complete agreement and one with the counsel for the 2nd and 3rd respondents that at the time the purported notice of appeal was filed, the appellant herein was long dead, ceased to exist and had neither legal existence nor vires to file or authorise the filing of the appeal.”
The same is true of the situation in the instant application. Applicant herein is long dead, he can neither file an application for extension of time within which to do anything in this case nor does he possess the vires to authorise the filing of the application.

In the light of the foregoing, it is apparent that this application is incompetent. As it has become an academic exercise to consider the other prayers on the motion paper, I will not embark on such a fruitless exercise.

This application is devoid of merit and it is accordingly hereby dismissed.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

Appearances

Eloka J. Okoye, Esq.For Appellant

AND

P.A. Akubo, Esq. SAN with him, Messrs S.Y. Tsok and A. J. AchiduFor Respondent