Veralam Holdings Limited V. Galba Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The writ of summons taken out of the Federal High court, holden at Port Harcourt on 24th November, 2004 by the appellant, as the plaintiff, has two (2) defendants against whom the claims of the plaintiff were made. The 1st and 2nd Defendants, respectively in the said suit no FHC/PH/CS/1537/2004 were GALBA LTD and LT. GENERAL T.Y. DANJUMA (RTD).

In the suit the appellant, as plaintiff, claims in paragraph 21 of the statement of claim endorsed on the writ of summons as follows:

21. Wherefore the plaintiff claims as follows from the defendants:

(a) A declaration that the plaintiff is not indebted to the defendant (sic) in the sum of N590,000,000.00 (Five Hundred and Ninety Million Naira) as claimed in the defendant’s letter dated November, 10 2004 or at all

(b) An order of the Honourable court setting aside the notice of intention to sell the shares in Galba Ltd contained in the defendant’s letter of November 10, 2004 as illegal and fraudulent

(c) An injunction restraining the defendant from selling the shares of the plaintiff in the defendant’s company without the consent in writing of the plaintiff.

On 15th November, 2005 the 2nd defendant in the said suit at the court below brought a motion seeking inter alia, an order “that the name of the 2nd defendant, Lt. Gen. T.Y. Danjuma (RTD) be struck out of this suit”. The said 2nd defendant, succeeding in the application, was on 24th November, 2006 “struck out of the suit”. By that order the 1st defendant, GALBA LTD, became the sole defendant in the suit. It is this order that has agitated the filing of this appeal.

The Notice of Appeal, at pages 63 and 64, filed on 8th December, 2006 has only Lt. General T.Y. Danjuma (RTD) as the sole respondent in the appeal. Thus the parties in the suit leading to the appeal have been unilaterally altered without leave of court.

By order 6 Rule 2 (1) of the court of Appeal Rules, 2011 “all appeals shall be by way of rehearing”. As stated in ADEGOKE MOTORS LTD v. ADESANYA (1998) 3 NWLR [pt.109] 250 at page 266, which principle of law was restated in NGIGE v. OBI (2006) 14 NWLR [pt.999] 1 at page 225: because appeal is generally regarded as continuation of the original suit, rather than the inception of a new action; 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. When there are improper parties on an originating process, the proper order to make is an order striking out the said process, in this case: the notice of appeal. See OLORIODE v. OYEBI (1984) 1 SCNLR 390. This is what order 6, Rule 6 of the court of Appeal Rules, 2011 is all about. A court of law has the power and duty to put an end to any proceedings if, at any stage and by any means, it becomes manifest that the proceedings are incompetent. It can do this of its own initiative or at the behest of a party in the proceedings. See WESTMINISTER BANK LTD v. EDWARDS & ANOR (1942) A C 529 at page 536.

The parties in the appeal seem to acquiesce in the fundamental defect bedevilling this interlocutory appeal. The appellant and the defendants at the court of first instance, including GALBA LTD, who is not a respondent in this appeal, exchanged briefs of argument. Galba Ltd and Lt. Gen. T.Y. Danjuma (RTD) filed joint “Respondents’ Brief of Argument” on 16th April, 2010. The brief was deemed filed on 12th February, 2013. This was in response to the Appellant’s Brief with two respondents therein.

By Order 6 Rule 15 of the extant Rules of this Court amendment of any process before this Court is only by leave of court, and not by acquiescence of the parties thereto. If a process, as this notice of appeal, is incompetent the parties can not by acquiescence validate or re-validate it for purposes of the court’s jurisdiction over it. See A.G. ANAMBRA STATE v. OKEKE (2002) 12 NWLR [pt.782] 575 wherein the Supreme Court cited with approval the statement of law on this principle as contained in WESTMINISTER BANK LTD v. EDWARDS (supra).

The appeal, as it is now, is not properly constituted by the unilateral alteration of the parties to the suit from which the appeal emanates. The situation entitles me to strike out the appeal on the Authority of PERMANENT SECRETARY MINISTRY OF WORKS, KWARA STATE v. BALOGUN (1975) 5 SC 57; (1975) ALL NLR 253.

The rationale for striking out appeal or suit not properly constituted is the general rule of law, anchored in the principle of audi alteram partem, that no person is to be adversely affected by a judgment in an action to which he was not made a party, because of the injustice in deciding an issue against an issue against him in his absence: