SKYE BANK v. RIVERS STATE INTERNAL REVENUE SERVICE & ORS (2021)

SKYE BANK v. RIVERS STATE INTERNAL REVENUE SERVICE & ORS

(2021)LCN/15583(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, November 24, 2021

CA/PH/652/2017

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

SKYE BANK PLC (FORMERLY MAINSTREET BANK LTD.) APPELANT(S)

And

1. RIVERS STATE INTERNAL REVENUE SERVICE 2. RIVERS STATE GOVERNMENT 3. RIVERS STATE COMMISSIONER OF POLICE RESPONDENT(S)

RATIO DECIDENDI

DEFINITION OF A MISNOMER

“A misnomer can be said to be a mistake in name, i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. In EMESPO J. CONTINENTAL LTD V. CORONA S. & CO., (2006) 11 NWLR (pt. 991) 365, this Court held that a misnomer occurs when the correct person is brought to Court in a wrong name.” PER OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

INCOMPETENT NOTICE OF APPEAL

In the case of Odunze & Ors. v. Nwosu & Ors. [2007] LPELR – 2251(SC), the view of the Court in the point is that:
“A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions that a party’s complaints against a decision by way of grounds of appeal not forming part of the notice of appeal cannot be entertained. Furthermore, once the notice of appeal is vitiated in anyway the appeal becomes incompetent and liable to be struck out. See Kolawole v. Alberto (1989) 2 SC (Pt. 111) 187; (1989) 1 NWLR (Pt. 98) 382. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.” PER OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

AMENDMENT OF NAMES OF PARTIES

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): This appeal was argued on 21/09/2021, after the Court was satisfied, by the Clerk of Court, that the 2nd and 3rd respondents were served with hearing notice (on 16/08/2021) for the scheduled hearing and opted not to participate in the proceedings.

On that day, M. O. Anagor Esq. directed the attention of the Court to a notice of preliminary objection, filed by the 1st respondent, on 18/03/2021, which he relied upon, to request the Court to grant the relief therein, as argued at pages 4-8, in the 1st respondent’s brief of argument, filed on 18/03/2021, but deemed filed on 12/07/2021.

On his part, Solomon Oho Esq., learned counsel for the appellant responded that the response of his client to the preliminary objection, will be found in the appellant’s reply brief (pages 1-6 thereof). He submitted that the preliminary objection is without merit and should be dismissed.

Appellant’s counsel, thereafter, adopted appellant’s brief of argument and reply brief of argument, filed 07/03/2020 (deemed on 02/12/2020) and 23/08/2021, respectively, as argument of the appeal. He urged the Court to allow the appeal.

Anagor Esq. adopted 1st respondent’s brief of argument, filed on 18/03/2021 and deemed properly filed on 12/07/2021 as argument of opposition to the appeal. He requested that the appeal should be dismissed.

This appeal, according to the appellant, is against the ruling of the Federal High Court, sitting in Port HarCourt, in suit no. FHC/PH/CS/218/2014, under the hand of U. N. Agomoh, J., dated 03/11/2017.

As already noted above, the 1st respondent filed a notice of preliminary objection on 18/03/2021, signed by O. V. Frank-Briggs Esq., wherein the attention of the Court was drawn to the fact that it lacks jurisdiction to entertain this appeal. The grounds for the objection are stated, thus:
1. That the Appellant, without the leave of this Honourable Court or that of the lower Court, changed the nomenclature of this suit and unilaterally changed the parties to the suit.
2. This appeal is an interlocutory appeal from the decision of the Federal High Court on mixed law and fact and as such does not lie as of right.
3. Grounds 3, 4, 5 and 6 of the Notice of Appeal contain grounds of mixed law and facts and thus require leave to raise and argue same.
4. Grounds 4, 5 and 6 of the Notice of Appeal did not arise from the ruling appealed against.

In arguing the first ground of the preliminary objection, the 1st respondent’s counsel explained that an appeal is a continuation of the suit at the lower Court, which means that an appeal is not different from the suit at the lower Court, from which the appeal arose, relying on the case of A. G., Oyo State & Anor. v. Fairlakes Hotel Ltd. [1988] LPELR – 24926(SC). The attention of the Court was drawn to the fact that all processes in the record of appeal, including the ruling of the lower Court, which is being challenged, on appeal, show that Mainstreet Bank Limited was the plaintiff and the appellant (Skye Bank Plc.) was not a party to the suit at the lower Court. This appeal was, however, filed in the name of the latter. Learned counsel submitted that the filing of this appeal, in the name of the appellant, is tantamount to changing a party to the suit, without leave of the Court. He submitted that a party to a suit cannot be changed, without leave of Court. He cited the case of Shinning Stars Nig. Ltd. v. AKS Steel Nig. Ltd..[2011] 4 NWLR (Pt. 1238) 596 at 619-620, where the Court held that an applicant cannot, on its own, change the parties in a notice of appeal. He submitted that Skye Bank Plc. (formerly Mainstreet Bank Limited) is not the same person as Mainstreet Street Bank Limited. He relied on the case of Dr. E. J. Esenowo v. Dr. I. Ukpong & Anor. [1999] 6 NWLR (Pt. 608) 611 at 617, 621. By the appellant filing this appeal in its name, unilaterally, and without leave of Court, the appellant changed a party to the suit and thus, the notice of appeal and this appeal is incompetent and should be struck out. The cases of Princess v. Nigeria Customs Board & Ors. [2018] LPELR – 45551(CA) was relied upon.

In paragraph 4.5.4. of the 1st respondent’s brief of argument, regarding an enrolled order included in the record of appeal, learned counsel submitted as follows:
“4.5.4. The order of the federal High Court on Nigeria sitting in Lagos made on the 29th day of June 2015 upon which the Appellant hinged his submission on this issue was smuggled into the Record of Appeal and was not part of the proceedings at the lower Court. It beats our imagination, and that of every reasonable man, how the Appellant expected the lower Court to suo motu take judicial notice of the change in the nomenclature of the Appellant and apply same to proceedings when the Appellant took part fully in the proceedings and hid that fact from the lower Court and parties We submit that it is trite that an appeal must be centered on live issues before the lower Court and must also be based on the decision which is the subject matter of the said appeal. Differently put, an appeal must be restricted to issues canvassed before the lower Court pursuant to which the lower Court took a decision which is being challenged on appeal. The issue of the legal personality of the Appellant was not canvassed before the lower Court, neither did same form part of the decision of the lower Court which is being challenged by the Appellant via this appeal.”

Responding on the issue raised by the 1st respondent’s counsel and narrated above, the appellant’s counsel did not deny altering the name of the plaintiff in the lower Court, in the notice of appeal filed before this Court. The position taken by the appellant’s counsel, in paragraph 2.2 of his appellant’s reply brief of argument, is written thus:
“2.2 We submit respectfully on this issue that the right and proper party is before this Honourable Court, and it is only a misnormer as the Respondents are not deceived and are well familiar with the right party to the suit.”

Learned counsel cited the cases of Chukwuemeka v. Iwerumor [1996] 9 NWLR (Pt. 472) and APGA v. Ubah [2019] 15 NWLR (Pt. 1694) on the law’s understanding of misnomer and its effect in proceedings.

Appellant’s counsel recalled that the “appellant” filed a motion on notice, dated 01/12/2014, before the lower Court seeking leave of the lower Court to amend its originating summons to reflect the proper names of the parties, which was ignored by the lower Court, when it ruled on the 1st respondent’s preliminary objection before it, which led to the lower Court “dismissing the suit in its ruling.”

Learned counsel pointed out that there is an existing order of the Federal High Court stating that Mainstreet Bank be merged with Skye Bank Plc. and all legal matters against the Bank should be continued in Skye Bank’s name. He explained that Mainstreet Bank Limited ceased being a legal entity at the time of the decision of the lower Court on 03/11/2017, as the Federal High Court, on 29/06/2015, dissolved Mainstreet Bank Limited and transferred its assets and liabilities to Skye Bank Plc. (the appellant herein). Learned counsel relied on the case of Skye Bank v. Danlami Nigeria Limited, and the Court was directed to pages 262-263 of the record of appeal.

Learned counsel urged the Court to discountenance the argument of 1st respondent’s counsel on the issue, because the proper party is before the Court and parties were not deceived.

Before determining the issue of appellant’s unilateral alteration of the name of the plaintiff, before the lower Court, in this judgment, there are aspects of the appellant’s counsel’s argument, which this Court has a duty to correct.

Learned counsel, Dr. Charles Mekwunye, argued that the lower Court ignored an application, dated 01/12/2014, filed before it, which was meant to correct the name of the plaintiff, before the lower Court. The attention of the Court was directed to pages 74-104 of the record of appeal (see paragraphs 2.5 and 2.6 of the appellant’s reply brief of argument). I have examined the record of appeal and the statement of the appellant’s counsel is not accurate. The motion in question was not directed at changing the name of the plaintiff (Mainstreet Bank Limited) before the lower Court. It was intended to change the name of the 1st respondent, in this appeal.

Secondly, learned counsel for the appellant claimed that the lower Court dismissed the case before it. That is, with due respect, not an accurate representation of what the lower Court did. The lower Court, in its final order in the ruling of 03/11/2017, transferred the suit before it to the Rivers State High Court. A suit, which is transferred by order of Court, is not one dismissed, but one kept alive for determination at the designated forum contained in the order of the Court.

Thirdly, there is an enrolled order of the Federal High Court at pages 262-263 of the record of appeal. There is no indication that the enrolled order was ever part of documents filed before the lower Court. There is no indication how the enrolled order in suit no. FHC/L/ CS/567/15, which was a proceeding before the Lagos Division of the Federal High Court, got into the record of appeal for suit no. FHC/PH/CS/218/2014, which was a proceeding before the Port HarCourt Division of the Federal High Court. It is a very strange development. The appellant’s counsel omitted to offer an explanation, the appeal being the baby of the appellant, despite the fact that the 1st respondent bellyached loudly, that the document was smuggled into the record of appeal.

Now, the complaint of the appellant is that the name of the “plaintiff” before the lower Court was Mainstreet Bank Limited. The name of the appellant in the notice of appeal filed before this Court is Skye Bank Plc. (formerly Mainstreet Bank Limited), going by the complaint of the 1st respondent. An examination of the ruling of the lower Court and the notice of appeal confirms the 1st respondent’s observation, which led to the objection. The plaintiff before the lower Court, whose name is reflected in the ruling of the lower Court, subject of the appeal before us, is “Mainstreet Bank Limited”. The name of the appellant before us is “Skye Bank Plc (formerly Mainstreet Bank Limited)”, going by the notice of appeal, filed on 15/11/2017, which appellant’s counsel claimed to be relying on, in paragraph 2.15 of appellant’s brief of argument.

It is remarkable that appellant’s counsel agreed that there is an alteration of the name of the plaintiff in the lower Court, as reflected in the notice of appeal filed before this Court. The appellant’s counsel claimed that the development is a case of a misnomer. This Court notes that there is no request to this Court asking it to formalise or regularize the unilateral change of the name of the plaintiff in the lower Court, in the notice of appeal, by way of a formal application presented to this Court. There is no request for leave of this Court to make regular, that which was done wrongly. Thus, the wrong remains as the complaint stated, without the appellant demonstrating any intention to make it right.
In the case of Registered Trustees of the Airline Operators of Nigeria v. NAMA [2014] LPELR – 22372(SC), the Court stated, thus:
“A misnomer can be said to be a mistake in name, i.e. giving incorrect name to a person in the writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name of a person. In EMESPO J. CONTINENTAL LTD V. CORONA S. & CO., (2006) 11 NWLR (pt. 991) 365, this Court held that a misnomer occurs when the correct person is brought to Court in a wrong name.”
Per OKORO, JSC. (Pp. 20 paras. D).
In the case of Maersk Line & Anor. Addide Investment Ltd & Anor. [2002] LPELR – 1811(SC), the Court stated that:
“In Olu of Warri v. Chief SamWarri Esi & amp; Anor. 3 FSC 94 at 96; (1958) SCNLR 384 where in circumstances not too dissimilar to the present case, the trial Judge had struck out the case on the defendants’ objection to the plaintiff being not a juristic person, the Federal Supreme Court (as this Court was then known), on appeal to it, held, per Ademola FCJ (as he then was):
“When the objection was raised about a misnomer, he had the opportunity of asking the Court for leave to amend, especially when the Judge ruled there was a misnomer. The cases Establishment Baudelot v. R.S. Graham and Co. Ltd. (1953) 1 All E.R. 149 and Alexander Mountain and Co. v. Rumere Ltd. (1948) 2 All E.R. 483 cited by counsel are authorities to show that in a case of misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.”
Per OGUNDARE, J.S.C. (Pp. 27-28 paras. F).
Also, in the case of Commerce Assurance Ltd. v. Alli [1992] LPELR -883(SC), the Court took the position that:
“… it is settled that where an amendment sought relates to a mere misnomer, it will be granted almost as a matter of course. See on this: Sam Warri Esi v. Shell B-P Petroleum Development Co. of Nig. Ltd. (1958) SCNLR 384 (1958) 3 F.S.C. 94.”
Per NNAEMEKA-AGU, J.S.C (Pp. 18 paras. E).
Authorities cited above are only meant to signpost that even if there was a misnomer in this matter, the appellant had a duty to file an application, which was not filed in this proceeding, to obtain an order of the Court to save the appeal. That step was not taken by the appellant, who conceded that he unilaterally altered the name of a plaintiff in the lower Court in the notice of appeal filed in this Court. That step, without leave of Court, is not permitted by law. The reason for insisting that parties before the lower Court must be the same parties before the appellate Court is because the Court has a duty to ensure that the parties involved in the appeal before it are not persons who did not have the opportunity of being heard or denied fair hearing before the lower Court. The onerous responsibility of the appellate Court is the reason for the requirement that any alteration of the parties coming before the appellate Court must receive the prior imprimatur of the appellate Court, which is in charge of the register of persons to be affected by the proceedings coming before it. In any circumstance, where the existing register of parties before the lower Court would be altered without the sanction of the appellate Court, caused by unilateral action of one or more of the parties before it, the appellate Courts have always viewed such action grimly and struck out such appeal, because it is taken that the jurisdiction of the appellate Court was thereby compromised.
In order to drive home the point being made here, reference will necessarily be made to many pronouncements of Courts on the issue in different scenarios. In the case of Ladoja v. Ajimobi & Ors. [2016] LPELR – 40658(SC), the Court held the view that:
“With the appeal against the extant judgment of the Tribunal, the 1st cross respondent (appellant before the Lower Court) is bound to maintain and sustain the appeal between the same parties and on the same subject.
Again see a recent decision of this Court in Agbaje V. INEC & Ors. (2015) 10 SC 42, see also PPA. V. INEC (2012) 13 NWLR (Pt. 1317) 215 at 237, where the Court ruled that where a stranger displaces a party on appeal by usurping his position in a proceeding at the trial Court, the appeal will be rendered as incompetent and consequently rob the appellate Court of the jurisdiction to hear same.
Also in the case of Shinning Stars Nig. Ltd. v. AKS Steel Nig. Ltd. (2011) 4 NWLR (Pt 1238) 596, the initial notice of appeal filed by the appellant in this Court was against four respondents. The appellant on a motion filed unilaterally, reduced the number of respondents to three.
This Court upheld a preliminary objection raised against the reduction and ruled the application as incompetent and was dismissed.
The appeal filed by the 1st cross respondent whereby it made the 4th cross respondent, (its co-petitioner at the trial Tribunal) a respondent to its appeal is nothing short of an abuse of Court process. The consequential effect is an outright dismissal of the appeal so filed at the Lower Court. See Arubo V. Aiyeleru and Onyeabuchi V. INEC(supra).”
Per OGUNBIYI, JSC. (Pp. 22-23 paras. A-A).
In the case of Apeh & Ors. v. PDP & Ors. [2016] LPELR – 40726(SC), the Court admonished as follows:
“Now, Order 2 Rule 8 of the Rules of this Court provides as follows: 8. Notices of Appeal, applications for leave to appeal, briefs and all other documents whatsoever prepared in pursuance of the appellate jurisdiction of the Court for filing in accordance with the provisions of these Rules, shall reflect the same title as that which obtained in the Court of trial. (Italics supplied for emphasis) In P. P. A. v. INEC (2012) 13 NWLR (pt. 1317) 215, 237, this Court held that, in a situation such as the Present one, the “proper thing to do is to leave the parties on record intact notwithstanding the decision of the trial (Court) and state the name of the interested party and identify him as the applicant…” In other words, by virtue of Order 2 Rule 8 (supra), all the processes before this Court must “reflect the same title as that which obtained in the trial (Court).”
Per NWEZE, J.S.C (Pp. 16 paras. A).
In the case of Odunze & Ors. v. Nwosu & Ors. [2007] LPELR – 2251(SC), the view of the Court in the point is that:
“A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions that a party’s complaints against a decision by way of grounds of appeal not forming part of the notice of appeal cannot be entertained. Furthermore, once the notice of appeal is vitiated in anyway the appeal becomes incompetent and liable to be struck out. See Kolawole v. Alberto (1989) 2 SC (Pt. 111) 187; (1989) 1 NWLR (Pt. 98) 382. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.”
Per CHUKWUMA-ENEH, JSC. (Pp. 21-22 paras. C).
In the decision in Oguejiofor v. Oguejiofor & Anor. [2016] LPELR – 41567(CA), this Court decided as follows:
“Learned counsel for the appellant has argued that making the 2nd respondent a party to this appeal, without leave, is an issue of misjoinder and non-joinder which ought not to affect the appeal. He placed reliance on F.G.N. v. SHOBU (supra). In the SHOBU’S case, the respondents as plaintiffs, at the trial Court, had sued the 2nd appellant as a defendant. The Court of Appeal held that the 2nd appellant was a non-juristic person and so could not be sued. It therefore struck out his name from the appeal and held that, that did not affect the appeal, and this was done in the peculiar circumstances of that case. That is not the case in the instant appeal where the 2nd appellant was not made a party, even if he was supposed to be a party. He was only made a party at the appeal stage, despite Order III Rule (2)(5) of the Matrimonial Causes Rules. He was not served and was not heard at all at the trial Court, despite that his interests were clearly affected, as disclosed in the cross-petition. The case of F.G.N. v. SHOBU (supra) is therefore not appropriate and not applicable to the instant appeal.”
The appropriate case is VERALAM HOLDINGS v. GALBA (supra), where this Court, per Eko, JCA as he then was, held that –
“… parties are normally confined to the case, as pleaded in the Court of first instance. This case at the Court below, being the Court of first instance, has the appellant, as the plaintiff, with Galba Ltd. and Lt. Gen. T. Y. Danjuma (RTD) as 1st and 2nd defendants respectively. The unilateral alteration of the parties in the Suit, as pleaded at the Court below, by the appellant as reflected in the Notice of Appeal, renders the notice of appeal incompetent. With these Parties, improperly altered, on the notice of appeal the said notice of appeal is liable to be struck out, and it is hereby struck out.”
It is not controverted that in the instant appeal, the 2nd respondent was not in fact made a party to the proceedings. He was made a party in the Notice of Appeal, unilaterally, by the appellant.

An amendment of names of parties in a notice of appeal, if required to be done, must be by way of a motion supported by an affidavit. It cannot even be made orally since it is a fundamental issue. It is worse and unacceptable if no leave is sought for and obtained before the amendment. See NGIGE v. OBI (2006) 14 NWLR (Pt. 999) 1 at 222. This case had emphasized that an appeal is a continuation of the case at the Court below.
In the instant appeal, the parties in the Notice of Appeal are not the parties at the trial Court. There has been a unilateral alteration, i.e. no leave was sought for and obtained before making the alteration. It is not a situation where the mistake of counsel should not be visited on his client. It is a fundamental issue going to the competence of the process. In this vein therefore, the Preliminary Objection is upheld and the Notice of Appeal filed on the 21st of June 2013, with parties improperly altered, is incompetent. It is hereby struck out.”
Per YAHAYA, JCA. (Pp. 9-11 paras. B).
This Court notes the argument of the appellant’s counsel concerning the order of the Court in suit no. FHC/L/CS/567/15, which involved only Skye Bank Plc. and Mainstreet Bank Limited, as joint petitioners. An enrolment of order in the named case is, inexplicably, reflected at pages 262-263 of the record of appeal. It is a fact that the lower Court did not become aware of the order and appellant’s counsel did not point at any portion of the record of appeal where the lower Court was made aware of the existence of the order and requested to act on it. There was no application before the lower Court to include the name of Skye Bank Plc. in the proceedings before it. Thus, at the conclusion of proceedings before the lower Court, the lawful “plaintiff” before it was Mainstreet Bank Limited and not Skye Bank Plc.
Another very befuddling aspect of the conduct of the appellant in this appeal is the fact that the enrolment of order, unfortunately, shown on pages 262-263 of the record of appeal is dated 29/06/2015. The ruling complained about in this appeal is dated 03/11/2017. Between those two dates, Skye Bank Plc, who was aware of the said order, did not deem it necessary to appear in the lower Court to intervene and get an order of the Court to include its name in the proceedings before the lower Court. After, inordinately, waiting until the conclusion of proceedings, Skye Bank Plc. then found its way into filing an appeal in proceedings which did not bear its name in the lower Court. While the conduct of Skye Bank Plc in concealing the order of 29/06/2015 in another suit is not right, it is not also right for Skye Bank Plc to insert itself into the appeal it filed before the Court without leave of the Court, either in the lower Court or in this Court. It is the conduct of Skye Bank Plc in suit no. FHC/PH/CS/218/2014, which is purportedly on appeal before us, which is in focus and not what was ordered in another suit on 29/06/2015, in suit no. FHC/L/CS/567/15.
What happened in this case was a deliberate, unfortunate, calculated, wrongful act of Skye Bank Plc, which is not a misnomer. There is no reason to embark on the Other issues thrown up in the argument of parties in this appeal, because the appeal should not have been filed before this Court, as it was filed, in the first instance. It is the determination of this Court that the notice of appeal filed, on 15/11/2017, which included the name of Skye Bank Plc, as appellant, is defective and this Court does not have jurisdiction over this appeal, which is hereby struck out.

TANI YUSUF HASSAN, J.C.A.: The Judgment just delivered by my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA was made available to me before now. I agree that the appellant cannot unilaterally alter the names of the parties on appeal, as the same title as that which obtained at the trial Court shall be reflected in the Court of Appeal. The Notice of Appeal filed the Appellant on 15/11/2017 altering the names of the parties as they were at the trial Court, rendered the Notice of Appeal incompetent and liable to be struck out and it is accordingly struck out.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.

This appeal has nothing to stand on as it was dead on arrival. The Notice of Appeal which initiated this appeal is fundamentally defective and therefore incompetent. It robbed this Court of jurisdiction to hear and determine the appeal as constituted.

The Notice of Appeal is struck out in line with the lead judgment. Notice of Appeal is struck out in line with the lead judgment.

Appearances:

I. O. Nwodoh Esq. with him A. Chigoziri Esq. holding brief for Charles Mekwunye Esq. For Appellant(s)

M. O. Anagor Esq. – for the 1st RespondentFor Respondent(s)