NIGERIA DEPOSIT INSURANCE CORPORATION v. QUALITEM PHARMACY LIMITED
(2018)LCN/12270(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of December, 2018
CA/L/365/2017
RATIO
JURISDICTION: THE AUTHORITY OF THE COURT
“Jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognisance of matters presented before it in a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided, authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454” PER TOM SHAIBU YAKUBU, J.C.A.
JURISDICTION: CONDITIONS TO HAVE PROPER JURISDICTION
“In Madukolu & others v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNL 341 at 587 – 590, the Federal Supreme Court held on jurisdiction and the competence of a Court thus: “Put briefly, a Court is competent when – a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” These three conditions stated above must co-exist before the Court can be vested or clothed with proper competence and jurisdiction. See The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506: Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
NIGERIA DEPOSIT INSURANCE CORPORATION Appellant(s)
AND
QUALITEM PHARMACY LIMITED Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the decision of the Lagos State High Court of Justice, Lagos Judicial Division, holden at Lagos, rendered on 16th September, 2011. The respondent was a customer of and maintained several accounts at the defunct Metropolitan Bank Ltd. Sometimes in 2001, the respondent applied to the bank and was granted a loan facility in the sum of Seven Million, Five Hundred Thousand Naira (7, 5000, 00) only to finance the acquisition of a developed property lying and situate at No: 102A, Island Way, Dolphin Estate, Ikoyi, Lagos. The loan was repayable in eighteen (18) monthly installmental payments.
The parties had agreed that the said property would be used as equitable mortgage for the loan by the Respondent depositing the title deed with the said Metropolitan Bank Limited and have same returned to the Respondent on the final repayment of the said loan and interest. However, the Metropolitan Bank Limited had held unto the title deed to the said property even as the Respondent insisted that all the said loan and the interest thereon had been repaid and the Metropolitan Bank Limited had even made two extra deductions from the Respondent’s account.
The Respondent also on the 19th of July, 2002 approached the defunct Metropolitan Bank Limited with an offer to transfer a total amount of N22, 174, 730.84 to a named beneficiary in France at an agreed rate of N117.00 to US$1.00, the defunct Metropolitan Bank Limited accepted the offer and the Respondent paid into an account that the Metropolitan Bank Limited opened for the letter of Credit two Zenith Bank cheque Nos. ZIB8333 and ZIB8315 on the same 19th of July, 2002. The defunct Metropolitan Bank Limited effected the transfer of the said fund the same day, but later turned back months later to say that the transfer was done on the 22nd of July, 2002 and at the exchange rate of N135.00 per US$1.00 following the introduction by the Central Bank of Nigeria of the Dutch auction system which pushed up the agreed exchange rate. The defunct Metropolitan Bank Limited afterwards wrote the Respondent asking the Respondent to pay N3, 290, 787.00 as balance to make up for the increase in the exchange rate from N117.00 to N138.00 to $1.00 which increased rate was not obtainable on the 19th of July 2002 when the Respondent and Metropolitan Bank Limited agreed for the transfer of N22, 17 4, 73~80 to a named beneficiary in France.
After so many months of futile efforts at trying to make the defunct Metropolitan Bank Limited, see the wrong in debiting the Respondent’s account with the sum of N3.2 million Naira, the Respondent was compelled to write a formal letter dated 13th February 2003, wherein the Respondent decried the actions of the defunct Metropolitan Bank Limited as a breach of contract because the letter of credit as well as the Local purchase order took into consideration the exchange rate prevailing as at the 19th of July 2002 (which was one hundred and seventeen naira per dollar) this letter from the Respondent’s solicitor was ignored by Metropolitan Bank Ltd but on the 10th of February, 2004 the Respondent was embarrassed to receive a letter from the Solicitors to Metropolitan Bank Ltd demanding the payment of the debt N17.760 million Naira, which letter was dated 9th of February, 2004.
The Respondent through her Solicitors Messers Rodney Aman Chambers refuted the claims whilst also demanding for time to enable the Respondent’s Auditors Commissioned to audit the Respondents Account with Metropolitan Bank Ltd to finish the auditing, which Auditors Report eventually revealed the followings: –
(a) That the Respondent’s Accounts were illegally charged.
(b) That interest rates higher than the agreed interest rates were applied resulting in excess of N3,093,402.29 in overdraft and N905,776.89 on BAS.
(c) That the Metropolitan Bank Ltd violated the CBN tariffs by charging fees above stipulated rates as well as rates not permissible by the CBN tariff amounting to N2,359,229.61;
(d) Metropolitan Bank Ltd excessively deducted the sum of N704,167.75 in excess of the N7.5 million term loan borrowed after fully recovering the principal and interest.
(e) That Metropolitan Bank Ltd. created fictitious and unauthorized account No. 45F01/021125/00 with a debit balance of N5, 285, 597.49 in the name of the Respondent.
(f) That the bank charged excess COT and VAT amounting to N297, 401.28.
(g) That the Bank accrued interest on these excess charges amounting to N10, 295, 994.66.
(h) That the Respondent has fully paid up both the principal and interest on the term loan account as well as the import financing account and that excess of N10,016,985.53 has been illegally deducted from the Respondent’s account by Metropolitan Bank Ltd.
On the 4th of March 2004, the Respondent as Plaintiff brought a suit at the Lagos High Court against the Defendant Bank claiming the following: –
“1. A declaration that the Claimant is the rightful owner and is entitled to all the property located and situated at No. 102A Island way Dolphin Estate, Ikoyi, Lagos.
2. A declaration that the Dutch auction system introduced by Central Bank of Nigeria on the 22nd of July 2002 is not retroactive.
3. An order declaring null and void all sum, interest accrued to the account of the Claimant as a result of illegal, unjust and excessive charges by the Defendant.
4. An order mandating the Defendant to repay the Claimant the sum of N10,016,985.53 (Ten Million, Sixteen Thousand Nine Hundred and Eighty Five Naira Fifty Three Kobo) illegally deducted from the Claimant’s account.
5. An order mandating the Defendant to pay to the Claimant penalty, on the excess charges at the rate of CBN MRR up to the date of judgment.
6. An order of perpetual injunction restraining the Defendant, its agents privies or anyone claiming through or under it from foreclosing, selling or trespassing on the property situated at 102A Island Way, Dolphin Estate Ikoyi, Lagos.
(6). Damages for breach of trust.
(the Amended Statement of Claim is contained in pages 83 to 86 of the Record of Appeal)
The Appellant as Defendant filed her Further Amended Statement of Defence and Counter Claim dated 6th October 2010 wherein the Defendant Counter Claimed as follows: –
“(a) The sum of N24,531,343.94 being the outstanding balance of the facilities granted to the Claimant as at September 30, 2005.
(b) Interest on the sum at the rate of 21% per annum from the 1st day of October 2005 till judgment and thereafter at the same rate till the debt is fully liquidated.
(c) Cost of the action.
(d) An order authorizing the Defendant/Counter claimant to proceed against and sell the property at No. 102 A Island way Dolphin Estate, Ikoyi, Lagos?.
(the further Amended Statement of defence and Counter Claim are contained in pages 356-359 of the Record of Appeal).
On the 16th of April 2006, the Respondent as Claimant brought an Exparte application for an order of Court to substitute the name of Metropolitan Bank Limited as Defendant with the name of Nigeria Deposit Insurance Corporation in the suit and predicated the rationale for its application on the facts deposed to in the supporting affidavit to the Exparte application in which supporting affidavit it was stated that:-
“(2) That on the 16th of January 2006, the official Gazette of the Federal Republic of Nigeria reported that because Metropolitan Bank Limited in conjunction with 13 other Banks who were not able to re-capitalize to a minimum capital requirement of N25 Billion and who become insolvent with negative shareholders fund and had not been acquired by other banks adjudged healthy and thereby failing to comply with the obligations imposed upon them by banks and other financial institution Act 1991 and the Central Bank Act 1991. The Governor of the Central Bank of Nigeria therefore revoked the Banking licence of the Banks mentioned in the Gazette including Metropolitan Bank Ltd.
(3) The Central Bank of Nigeria further to paragraph 2 above directed Nigeria Deposit Insurance Corporation to apply to the Federal High Court for an order to wind up the affairs of the affected Banks to which Directive the N.D.I.C had carried out and the Banks are now under the control and management of N.D.I.C – a copy of the official Gazette of the Federal Republic of Nigeria No . 3 Volume 93 fated 16th of January 2006 is hereby annexed and marked Exhibit “A”.”
(the Motion Exparte, Affidavit in support, the official Gazette exhibited as well as Claimant/Applicants, written Address are contained in pages 289-295 of the Record of Appeal).
The Exparte application was heard on the 16th of April, 2007 by the trial Court and an order was made substituting Metropolitan Bank Limited with Nigeria Deposit Insurance Corporation
(See. Page 391 lines 25 – 28 of the Record of Appeal).
The substitution order was never set aside nor subjected to an appeal but rather same was executed and obeyed by all the parties to the suit including the Appellant who filed her Further Amended statement of Defence and Counter claim on the 6th of October 2010, more than 3 years after the substitution Order was made as well as participated throughout the hearing of the suit at the lower Court.
The learned trial judge delivered the judgment in this suit on the 16/09/2011 in which judgment the trial judge stated as follows: –
“I hereby declare that the Claimant is the rightful owner and is entitled to all that property located and situate at 102A Island way, Dolphin Estate, Ikoyi, Lagos.
I hereby make an order of perpetual injunction restraining the dependent, its agent, privies or anyone claiming through or under it from foreclosing, selling or trespassing on the property situated at 102A Island way, Dolphin Estate, Ikoyi, Lagos.
All other prayers fail and are hereby refused.
The Defendant’s Counter claim for lack of substantive and credible proof hereby fails.”
The Appellant was not satisfied with the judgment of the learned trial judge and therefore filled a Notice of Appeal dated 9/12/2016 and filed on the same date which Notice of Appeal contains 5 grounds of Appeal but later filed an Amended Notice of Appeal dated 24th day of September 2018 but filed on the 4th of October 2018 incorporating new grounds sequel to the order of this Honourable Court to that effect.
The appellant, in activating the prosecution of the appeal, was armed with the appellant’s brief of argument dated 14th September, 2018 and filed on 18th September, 2018 which was deemed filed on 20th September,2018. It was settled by S. A. Mustapha, Esq., M. B. Jimoh Akogun, Esq., L.A. Yusuf, Esq., A. D. Abdullahi, Esq., and A. A. Ishola, Esq. The respondent’s brief of argument dated 9th October, 2018 was filed on 10th October, 2018. It was settled by Godwin C. Anyafulu, Esq., Clifford Nwude, Esq., and Chukwuemeka A. Ezeji, Esq.
In the appellant’s brief of argument, two issues were nominated for the determination of the appeal, to wit:
1. Whether having regards to the circumstances of this case, it is safe to conclude that proper parties were before the Court below such as to clothe it with the garb of jurisdiction to warrant a hearing and determination of the case as it was presently constituted?
2. Whether from the totality of the pleadings and evidence led, there is a cause of action against the Appellant such that it would be personally liable?
The respondent, adopted the two issues nominated above by the appellant, for the resolution of the appeal. I am in agreement with both learned counsel for the respective parties that the two issues aforementioned, shall be the guide, in my consideration and determination of this appeal.
Appellant’s Arguments:
The rsum of the learned appellant’s counsel is that since the appellant was not involved in the transactions between the defunct Metropolitan Bank Ltd and the respondent which led to the cause of action and the subsequent filing of the action at the Court below, the appellant could not have been a proper party to the said action. This, according to him, was because of the fact that as at the time the cause of action arose between the defunct Metropolitan Bank Ltd and the respondent, the licence of the former had not been revoked, hence the said bank was not yet in liquidation and so the appellant was not equally the liquidator of the defunct bank.
It is his contention that where proper parties were not before the Court, the action was not properly constituted to invest the Court with the requisite jurisdiction to entertain and adjudicate on such an action. He referred to several authorities on the essence of jurisdiction to adjudication by Courts of law. Some of the authorities are:
Umanah v. Obong Victor Attah (2006) 17 NWLR (pt.1009) 503 @ 525; Nwosu v. Imo State Environmental Sanitation Authority (2004) 20 WRN 95 @ 142-143; Nasir v. Kano State Civil Service Commission (2010) 6 NWLR (pt.1190) 253 @ 276.
Furthermore, it is the contention of appellant’s learned counsel that even where the licence of a bank is revoked, the failed bank is not legally dead and non-existent, as it still remains a legal entity with power to sue and be sued in its own name. He placed reliance on Section 425(1) (a) and (b) of the Companies and Allied Matters Act, Laws of the Federation of Nigeria, 2004; Co- Operative & Commercial Bank (Nig) Plc v. O’ Silvawax International Ltd (1999) 7 NWLR (pt. 609) 97; In re – Amolegbe (2014) 8 NWLR (pt.1408) 76. He also contended that where the appellant is sued as a nominal party, as a liquidator of a defunct bank, it must be indicated on the face of the pleadings that it is sued as “Liquidator of” the bank in liquidation, which was not so done by the respondent herein and it ran foul of the provision of Section 422 (7) of the Companies and Allied Matters Act, 2004. In his summation, the appellant’s learned counsel contended that since the respondent did not establish that it had any grouse against the appellant, as distinct from the respondent’s cause of action against the defunct bank in question, the appellant cannot be held personally liable for any breach of the defunct bank’s -customer contractual relationship with the respondent, because the appellant was not a party to that contract.
Therefore, he insisted that the mere fact that the appellant was appointed as the liquidator of the defunct bank, without more, does not give rise to the respondent having a cause of action against the appellant, albeit that the respondent has a valid cause of action against the defunct bank in liquidation.
Respondent’s Arguments:
The learned respondent’s counsel, arguing per contra, to the appellant’s contentions, submitted that the appellant was brought in as a party to the action when it was substituted to replace the defunct bank by the exparte order of the Court below, made on 16th April, 2007, which was not appealed against and has not been set aside, hence the same remains extant and binding on the parties herein. He placed reliance on Akere v. Gov. of Oyo State (2012) 12 NWLR (pt.1314) 340 @ 369; Anyanwu v. Ogunewe (2014) 8 NWLR (pt.1410) 437 @ 470. And that as a result of the said order of substitution, the appellant filed processes in Court and defended the action at the Court below.
He also submitted that by virtue of Section 41(1) (a) of the Nigerian Deposit Insurance Corporation Act of 2006 and Sections 424 and 425 of the Companies and Allied Matters Act,2004, the Court has the power to direct that all or any of the properties of a bank in liquidation shall be vested in the appellant, who can sue and be sued in respect of such properties of the wound up bank so vested in the appellant and the outcome of such action in favour of the appellant, would naturally attach the property to the appellant. He referred to Nigerian Deposit Insurance Corp. v. United Bank of Nigeria. (2015) 22 NWLR ( pt.1473) 246 @ 293-294.
Furthermore, it is the submission of respondent’s learned counsel to the effect that the non inclusion of the phrase “Liquidator of Metropolitan Bank Ltd” in the name of the appellant, was a procedural irregularity which does not affect the competence of the respondent’s action and the jurisdiction of the Court to have entertained it. And that since the appellant had participated in the proceedings in this matter at the Court below, it is too late in the day for it to rake up an allegation on its status in the action. He referred to Ndayako v. Dantoro (2004) 13 NWLR (pt. 889) 187 @ 219; Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511 @ 545 and Order 13 Rule 16(1) of the Lagos State High Court (Procedure Rules ) 2004. He also submitted that the law is settled to the effect that an action cannot be defeated on account of non-joinder, mis-joinder or mis-description of a party. He placed reliance on Federal University of Technology, Yola v. Academic Staff Union of Universities (2013) 1 NWLR (pt.1335) 249 @ 283. He insisted that vide the averments at paragraphs 4,5,6,7,20 & 21 of the respondent’s statement of claim and Sections 424 & 425 of CAMA, 2004, the respondent had a cause of action against the appellant.
Resolution:
Jurisdiction is the authority that a Court has in order to decide any matter laid before it or even take cognisance of matters presented before it in a formal way for its decision on such matters. Therefore, where a Court lacks the jurisdiction to try any matter presented before it, such a decision amounts to nothing as it will be tantamount to an exercise in futility. To underscore the criticality and quitessence of jurisdiction to adjudication, the Supreme Court in a plethora of decided, authorities, one of which is Hon. Ehioze Egharevba v. Hon. Crosby Osadulor Eribo & Ors (2010) 9 NWLR (pt. 1199) 411; (2010) LPELR – 9716 (SC); (2010) 3 SCNJ (Pt. 11) 441 at 453 – 454, re-echoed the law succinctly, per Adekeye, JSC that:
“Jurisdiction is a term of comprehensive import embracing every kind of judicial action.
It is the power of a Court to decide a matter in controversy and presupposes the existence of a duly constituted Court, with control over the subject matter and the parties. Jurisdiction also defines the power of the Court to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which judges exercise their authority. Jurisdiction is equally to Court, what a door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue, because it is at the threshold of the temple of justice. Jurisdiction is a radical and fundamental question of competence, for if the Court has no jurisdiction to hear the case, the proceedings are and remains a nullity however well-conducted and brilliantly decided they might have been. A defect in competence is not intrinsic but rather extrinsic to adjudication. Oloba v. Akereja (1988) 3 NWLR (pt. 84) pg. 508; Oloriode v Oyebi (1984) 1 SCNLR pg. 390, Ezomo v. Oyakhire (1985) 1 NWLR pt. 2 pg. 105; Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992): 2 SCNLR pg. 341, Barclays Bank v. Central Bank of Nigeria (1976) 6 SC pg. 175, African Newspapers of Nigeria v. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Adeleke v. OSHA (2006) 16 NWLR pt. 1006 pg. 608; Attorney General Anambra State v. A – G Federation (1993) 6 NWLR pt. 302 pg. 692, Saleh v. Monguno (2003) 1 NWLR pt. 801 pg. 22l. The issue of jurisdiction being fundamental can be raised and challenged at any stage of the proceedings in the lower Court, in the Court of Appeal or even for the first time in the Supreme Court. The issue of jurisdiction being so pivotal can be raised suo motu by the Court so long as the parties are accorded the opportunity to react to the issue.”
The eminent jurist and revered Mohammed Bello, C.J.N. (now of blessed memory) in the judicial words on marble on jurisdiction, in Chief Utuedo Utih & 6 Ors v. Jacob U. Onoyivwe & 5 Ors (1991) 1 SCNJ 25 at 49, had stated that:
“Jurisdiction is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it, would be an abortive exercise.”
The reason for this analogy is not farfetched. It is because the life of the flesh is in the blood. In other words, jurisdiction is the life in the action, placed before the Court, for adjudication.
In Madukolu & others v. Nkemdilim (1962) All NLR 581; (1962) 2 SCNL 341 at 587 – 590, the Federal Supreme Court held on jurisdiction and the competence of a Court thus:
“Put briefly, a Court is competent when –
a) It is properly constituted as regards members and qualification of the members of the bench, and no member is disqualified for one reason or another; and
b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
These three conditions stated above must co-exist before the Court can be vested or clothed with proper competence and jurisdiction. See The Military Administrator Benue State & 20 Ors. v. Captain Clement Abayilo (Rtd) (2001) FWLR (Pt.35) page 604, (2001) 5 NWLR (Pt. 705) 19: Ishola v. Ajiboye (1994) 19 LRCN 35, (1994) 6 NWLR (Pt. 352) 506: Matari v. Dan Galadima (1993) LRCN 335, (1993) 3 NWLR (Pt. 281) 266; A-G., Anambra State v. A-G. Federation (1993) 6 NWLR (Pt. 302) page 692; Odofin v. Agu (1992) 3 NWLR (Pt. 229) page 350.
The jurisdiction of the Court is determined by the cause of action of the plaintiff as endorsed on the writ of summons or from both the writ of summons and the statement of claim. Where however, an action is commenced by Originating summons then it is the reliefs sought as well as the averments in the affidavit in support of the originating process that would be examined to discern if the Court has jurisdiction.
These would be relied on if the facts placed before the Court as contained in the statement of claim or the affidavit in the case of originating summons are clear and unambiguous to enable it determine the issue.
This is because it is the plaintiff who invokes the constitutional right for a determination of his right and accordingly the exercise of the judicial powers of the Constitution vested in the Courts. A-G., Oyo State v. NLC (2003) 8 NWLR (Pt. 821) 1; Akande & 2 Ors. v. Busari Alagbe & Anor, (2001) FWLR (Pt. 38) page 1352, (2000) 15 NWLR (Pt. 690) 353; A- G, Federation v. Guardian Newspaper Ltd. & 5 Ors. (2001) FWLR (Pt. 32) 93, (1999) 9 NWLR (Pt. 618) 187; Messrs N. V. Scheep & Anor. v. The MV’S Araz & Anor. (2000) FWLR (Pt. 34) 556, (2000) 15 NWLR (Pt. 691) 622; NEPA v. Atukpor (2001) FWLR (Pt. 20) 626. (2000) 1 NWLR (Pt. 693) 96; General Sani Abacha & 3 Ors. v. Chief Gani Fawehinmi (2000) FWLR (Pt. 4) 557, (2000) 6 NWLR (Pt. 660) 228; Okulate & 4 Ors V. Awosanya & 2 Ors. (2000) 2 NWLR (Pt. 646) 530-536.
In determining the cause of action in the instant matter in order to decipher whether or not the Court below possessed the requisite jurisdiction to adjudicate the respondent’s action, recourse must be had, to the respondent’s statement of claim.
Paragraphs 4, 5, 6, 7, 20 & 21 of the said statement of claim are instructive, to wit:
4. Sometimes in 2001 the Plaintiff applied and was granted a loan of N7.5million from the Defendant to facilitate the purchase of its property lying and situated at 102A Island Way Dolphin Estate Ikoyi Lagos. A deed of transfer of title was prepared and executed in favour of the Plaintiff. The Plaintiff shall rely on the Deed of Assignment of the property in proof at the trial.
5. The interest rates, terms and conditions attached to the granted loan were as contained in a letter of offer by the Defendant to the Plaintiff. The Plaintiff shall at the trial on the letter of offer.
6. Part of the prerequisite for the grant of the loan was that the Defendant shall have lien on the title Deeds of the property for such a time and until the Plaintiff shall have fully liquidated THE LOAN OF N7.5 million as well as interest thereon.
7. To date the Plaintiff has fully repaid the borrowed sum.
20. The Plaintiff avers that that since it has not yet retrieved its title deed from the Defendant even after repayment of the Loan the Defendant is capable and is in a position to foreclose on the Plaintiff’s property unless the Defendant is prevented by the Order of the Court.
21. The Plaintiff denies being indebted to the Defendant in any way rather the auditors report revealed, that the Defendant is the one who is owing the Plaintiff. Plaintiff shall rely on its auditors report at the trial as well as every material document relevant to the proof of this case.
WHEREOF the Plaintiff claims against the Defendant as follows:
1. A Declaration that the Plaintiff is the rightful owner and is entitled to all that property located and situated at 102A Island Way Dolphin.
2. A Declaration that the Dutch auction introduced by Central Bank of Nigeria on the 22nd of July 2002 is not retroactive.
3. An order declaring as null and void all sum, interest accrued to the account of the Plaintiff as a result of the retroactive application of the Dutch auction system.
4. An order of perpetual injunction restraining the Defendant, its agents privies or any one claiming through or under them from foreclosing, selling or trespassing on the property situated at 102A Island Way Dolphin Estate Ikoyi Lagos.
5. Damage for breach of trust.
6. Cost of this suit.
The phrase ‘reasonable cause of action’ was graciously defined by the Supreme Court in Chief Dr. Irene Thomas & Ors v. The Most Rev. Timothy O. Olufosoye (1986) 1 NWLR ( pt.18) 669; (1986) LPELR – 3237 (SC) thus:
“Lord Pearson in Drummond – Jackson v. British Medical Association (1970) 1 WLR 688; (1970) 1 All ER 1094 CA defined: ‘a reasonable cause of action as meaning a cause of action with some chance of success when only the allegations in the pleading are considered.’ The practice is clear. So long as the statement of claim or the particulars disclose some cause of action or raise some question fit to be considered by a judge or jury, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. (Moore v. Lawson 31 TLR. 418 CA; Wenlock v. Moloney (1965) WLR .1238; (1965) 2 All E.R. 871 CA). Where the statement of claim discloses no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action will be dismissed. Where no question of the civil rights and obligations of the plaintiffs is raised for determination in the statement of claim for determination, the statement of claim will be struck out and the action will be dismissed. I have searched in vain to discover any question as to the civil rights and obligations of the plaintiffs raised in the statement of claim. I cannot see how the qualification of some members of the Archbishop Advisory Committee of the Synod of Lagos Diocese raise any question as to the civil rights and obligations of the plaintiffs.” — Per Obaseki, J.S.C. @ pp.23-24.
Therefore, the question of the existence or disclosure of a reasonable cause of action in any matter in a plaintiff’s statement of claim is a discovery of the facts and circumstances of the transaction between the parties to the action. And it is at that stage, immaterial whether or not the claim is strong or weak, so long as the Court is able to decipher that the statement of claim raises some issues which the Court can inquire and find out in order to determine the truth in that claim. Further see: Rinco Construction Co. Ltd v. Veepee Industries Ltd & Anor (2005) LPELR -2949 (SC); Alhaji Aminu Ibrahim v. Mr. Felix Osim (1988) LPELR – 1403 (SC); Shell Petroleum Dev. Co. Ltd v. X.M. Federal Ltd & Anor (2006) LPELR – 3047 (SC) @ 13-14; (2006) 16 NWLR (pt.1004) 189.
Unarguably, from the averments reproduced above from the respondent’s statement of claim, it is glaring that a reasonable cause of action was disclosed against the defunct Metropolitan Bank Ltd, the initial defendant in the case. And it is simply that the respondent alleges to the effect that having paid off its loan obligation to the defendant bank, the latter or its agents, privies or any one claiming through or under the aforementioned defendant, should be restrained by order of Court from foreclosing, selling or trespassing on the property situated at 102A, Island Way, Dolphin Estate, Ikoyi Lagos. The contention of the appellant, is that the loan contractual relationship was between the appellant and the defunct Metropolitan Bank and that the appellant was not a party to that customer – bank contract relationship. Of course, ordinarily, that is the law.
However, the appellant was brought into the case at the Court below vide the order of substitution made by that Court which replaced the defunct Metropolitan Bank, the original defendant, with the appellant, as the extant defendant. That order was made by the Court below on the 16th April, 2007, to the effect that the appellant upon the directive of the Central Bank of Nigeria, had applied to the Federal High Court and obtained an order which wound up the Metropolitan Bank along with other banks named in the Official Gazette of the Federal Republic of Nigeria, NO.3 Volume 93 dated 16th January, 2006. Hence, the appellant took over the control and management of the Metropolitan Bank – the original defendant. Thereafter, having been substituted as the new and extant defendant, the appellant filed a Further Amended Statement of Defence and Counter- Claim against the respondent on 6th October, 2010. The appellant never thought of appealing against the order of 16th April, 2007, which made it a defendant.
That order remains binding on the parties and even the Court that made it as it had not been set aside by a competent Court with the jurisdiction to so do. It is settled elementary law that orders made by a Court of law which has not been appealed against and set aside remain extant and binding. Akere v. Governor, Oyo State (2012) All FWLR (pt.634) 53 @ 81 (SC); Oleksandr v. Lone star Drilling Co. Ltd (2015) 9 NWLR (pt.1464) 337 @ 371 (SC); Edem v. Ani (2017) 4 NWLR (pt.1555) 171 @ 184 (CA). This point was fascinatingly and succinctly made by the learned law Lord, Eso, JSC., in Oba Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129, thus:
“For a Court of competent jurisdiction, not necessarily of unlimited jurisdiction (and I will come to this anon) has jurisdiction to decide a matter rightly or wrongly. If that Court never had jurisdiction in the matter, then its decision is, without jurisdiction, void, but then should a Court of law not even decide the point? That is, the Court without jurisdiction decided without jurisdiction? Should the decision just be ignored? Surely it would not make for peace and finality which a decision of a Court seeks to attain. It would at least be against public policy for persons, without the backing of the Court, to pronounce a Court decision a nullity, act in breach of the decision whereas others may set out to obey it. In my respectful view it is not only desirable but necessary to have such set aside first by another Court before any act is built upon it despite the colourful diction of the law Lord in U.A.C. v. Macfoy (supra).”
In the circumstances of the instant case where the appellant did not apply that the exparte order made by the Court below, substituting and bringing it into the case as a defendant on 16th April, 2007, was irregular and needed to be set aside, but even took steps thereafter and filed a further amended statement of defence and a counter – claim against the respondent’s claim, will it be equitable for it to now complain that it has nothing to do with the respondent’s claim? I do not think so. The clear reason is that equity aids the vigilant and not the indolent. Furthermore, the appellant, having fully participated in the proceedings, at the Court below, after it became a defendant to the action, whether rightly or wrongly, is deemed to have waived the alleged irregularity of its being substituted for the original defendant bank.
It appears to me that it is bad practice for a party who came into a matter and took steps in the proceedings and even participated fully in it to the end, without let or hindrance, to now turn round, on appeal and complain of the perceived irregularity it had acquiesced and waived, because it lost the case at the trial Court. The decided authorities do not support such a negligent party. Adegoke Motors Ltd v. Dr. Babatunde Adesanya & Anor (1989) 5 S.C.N.J. 180 @ 189; (1980) LPELR- 94 (SC); (1980) 3 NWLR (pt.109) 250 @ 292; Administrators/Executors of the Estate of Gen. Sani Abacha (Deceased) v. Samuel David Eke- Spiff & Ors ( 2009) LPELR – 3152 ( SC) @ 58; Anyanwoko v. Okoye & Ors (2010) 1 S.C. ( pt.2) 30 @ 33.
I duly considered the appellant’s contention that even though the original defendant bank had gone under, it is not dead, in the eyes of the law. That is a correct statement of the law. That is, the mere revocation of a bank’s licence, without more, does not render the bank as dead. The revocation of the licence, notwithstanding, such a bank remains alive and its legal personality, remains intact and extant, hence it can sue and be sued in its corporate name in appropriate legal proceedings. That is statutorily provided for under Section 425 of the Companies and Allied Matters Act, Laws of the Fedration of Nigeria, 2004. The same principle of law was recently, succinctly explained by his Lordship, I.T. Muhammad, JSC., In Re: Amolegbe (2014) 8 NWLR (pt.1408) 76 @ 94, thus:
“—mere revocation of banking licence of a bank, without more, cannot bring to an end the juristic life of a bank or corporation. Likewise, where a bank or corporation ceases to operate or closes its business, that does not determine the legal existence of such a bank or corporation.”
See also Savannah Bank (Nig.) Plc v. Saba & Anor (2018) 14 NWLR (pt.1638) 56 @ 103-103 (CA).
Perhaps, if appellant’s counsel had gained the knowledge of this principle of the law in 2007 when the appellant was substituted for the original defendant bank and applied that the order made by the Court below be either set aside or varied to only join it as a party to the action, his contention with respect to the appellant’s status in the action, would have been ingenious. However, having failed to take any step against the said order of substitution, the consequences of which I have earlier discussed in this judgment, I only need re-echo the cliche’ that: “Once beaten, twice shy!”
I think that I should draw the curtain on this appeal now, but not forgetting the appellant’s learned counsel’s contention to the effect that in substituting the appellant for the original defendant bank, after the name of the appellant, it should have been described as “Liquidator of Metropolitan Bank Ltd”, in compliance with Section 422 (7) of the Companies and Allied Matters Act, 2004. It seems to me that the appellant, typical of a drowning man in an ocean, is clinging to anything in sight, even if it is straw, for him to climb out of the water and stay alive. However, the non- description of the appellant, in the instant matter, was not enough to defeat the action. And that reminds me of what I had said in a similar situation on the effect of a mis-description of a party in an action; in Federal University of Technology v. Academic Staff of Universities (2013) 1 NWLR (pt.1335) 249 @ 283, paras, C- G, that:
“I think, I should say a word on the submission of Mr. Odo, for the appellants to the effect that non-joinder of a party to an action defeats the action. That does not represent the law. Rather the law is that an action cannot be defeated on the ground of non-joinder, mis-joinder or mis-description of the parties because the Court suo motu or on the application of any of the parties, can join a party to an action if found necessary. See Chief Onwuka Kalu vs. Chief Victor Odili (1992) 5NWLR (Pt.240) 130; Ayankoya vs. Olukoya (1996) 4 NWLR (Pt.440) I; Ibrahim Vs. N.U.B Ltd (2004) 11 NWLR (Pt.885) 537 at 549 – 550; Nabaruma Vs. Offodile (2004) 13 NWLR (Pt.891) 599. Furthermore, even when a party who ought to have been joined to an action is not joined, that failure to join him, does not necessarily defeat the action and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties before it Per Mohammed, J.S.C in Chief Emmanuel Bello vs. Independent National Electoral Commission & ors (2010) 8NWLR (Pt.1196) 342. See also Peenok Investments Ltd Vs. Hotel Presidential Ltd (1982) 12 SC 1 AT 11; Prof. B.J. Olufeagba & Ors. Vs. Prof. Shuaibu Oba Abdur-Raheem & Ors (2009) 18 NWLR (Pt1173) 384.”
In view of all I have discussed above, it is manifestly clear that the two issues in this appeal are not available to the appellant. They are each, resolved against it. The appeal is lacking in merits. It is therefore hereby dismissed.
The judgment rendered by Y.O. Idowu, J., of the Lagos Judicial Division at the Lagos State High Court of Justice, Lagos, in re Suit NO: LD/507/2004, on 16 September, 2011, is consequently affirmed.
Costs of N200,000.00 is awarded to the respondent against the appellant.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading the leading Judgment prepared and rendered in this appeal by my Lord and learned brother, TOM SHAIBU J.C.A. My Lord has fully covered the field in the lead, I am in full agreement with the reasoning and conclusion because they are in accord with my own, I have nothing extra to add, except to state that I join my learned brother in holding that Appellant’s appeal is devoid of a scintilla of merit and therefore deserves to be dismissed, it is hereby dismissed by me, I also affirm the Judgment of the lower Court delivered by IDOWU J, of the High Court of Lagos State in Suit No. LD/507/2004. I abide by all consequential orders including order on costs.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU J.C.A. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
Appearances:
Appellant unrepresented, though served with hearing notice.
For Appellant(s)
G. C. Anyafulu, Esq.For Respondent(s)
