Afribank Nigeria PLC & Ors V. Nigeria Deposit Insurance Corporation (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court Lagos Judicial Division; Per Archibong J. dated the 2nd day of July, 2012 striking out the Appellants’ Notice of Preliminary Objection and granted the Order for the Winding-Up of the 1st Appellant.

The background facts of the case leading to this appeal seem quite simple and straightforward. On 22/12/2011, the Respondent pursuant to its statutory mandate under Section 40(2) of the Nigerian Deposit Insurance Corporation Act, 2006 presented a Petition at the lower Court against the 1st Appellant. Consequent upon advertisement of the Petition, the 2nd to 6th Appellants filed a Notice of Intention to appear in the hearing of the Petition.

When the Petition came up for hearing on 07/02/2012, the lower court adjourned proceeding to 02/04/2012, on the ground that there are pending suits that may be prejudiced. On the adjourned date of 02/04/2012, proceedings were further adjourned to 02/07/2012 for mention.

However, on 02/07/2012, the Appellants and their Counsel were not present in court and the lower court struck out the Appellants’ Notice of Preliminary Objection and granted the Order for the Winding-Up of the 1st Appellant as prayed by the Respondent. The Appellants being dissatisfied with the decision of the learned trial judge filed a Notice of Appeal dated the 11/07/2012 on five grounds.

In line with the rules of the court, the Appellant brief settled by I. O. Aniakor, Esq. of Onyebuchi Aniakor & Co., is dated and filed on 13/9/2012, as well as an Amended Reply Brief dated 12/11/2014 and filed on 13/11/2014 but deemed properly filed on 13/11/2014. The Respondent’s brief is dated 29/10/2014 and filed on the same date but deemed properly filed on 18/11/2014. Same was settled by Dr. K. U. K. Ekwueme, Khadija Yusuf and Chukwuemeka Osuji of Olaniwun Ajayi LP.

Appellants in their brief formulated two (2) issues for determination as follows:

1. “Whether it is open to the lower court to proceed, on a date in which this suit was expressly and specifically fixed for mention by the Court, to strike out the Appellant herein’s Notice of Preliminary Objection to the competency of the suit and/or to entertain the Petition comprised in this suit without any prior notice to the contrary and in the absence of an Order setting aside its earlier Ruling, to wit: “That there are suits that may be prejudiced”?

(Ground 1, 2 and 3)

2. Whether the Petition filed in this suit and the entire suit itself are not wholly incompetent and/or constitute grievous abuse of process, and ought thereby be struck out and/or dismissed in their entirety? (Ground 5)”

The Respondent on the other hand while adopting the above issues as formulated by the Appellants filed a preliminary objection challenging the competence of the appeal on the following grounds:

1. “The Notice of Appeal is incompetent, as it is contains the names of non-parties at the lower court; and
2. The Appellants failed to obtain leave to institute this appeal contrary to Section 243 (a) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).”

The Respondent in its Brief argued the preliminary objection, consequent upon which the Appellant replied to the argument in the Appellant’s Amended Reply brief. The preliminary objection raised will be considered forthwith.

Arguing its preliminary objection, the Respondent contends that a Notice of Appeal is the originating process in appellate proceedings before this court and its competence or otherwise goes to the jurisdiction of this court. Counsel further contended that an incompetent notice of appeal robs this court of its jurisdiction to hear an appeal.

Citing VERALAM HOLDINGS LIMITED v. GALBA LIMITED & ANOR (2014) LPELR-22671(CA) 8-9, D-C and OLORIODE v. OYEBI [1984] NSCC 286 at 297, paras 25 to 30, Respondent’s Counsel submits that a notice of appeal is incompetent where the parties in the suit leading to the appeal were unilaterally altered without the leave of court. Counsel further submitted that from the Petition filed at the lower court, it is evident that the parties at the lower court were only the Respondent herein (Nigerian Deposit Insurance Corporation, as Petitioner) and the 1st Appellant (Afribank Plc, as Respondent).

Counsel referred to the winding up order made by the lower court contained in page 582 of the Records, to submit that it is clear that the 2nd to 6th Appellants were not parties to the Petition which gave rise to this appeal and were allegedly joined as Appellant herein without the leave of this court first sought and obtained.

Counsel referred to Order 6 Rule 2 (1) of the Court of Appeal Rules; ADEGOKE MOTORS LTD v. ADESANYA [1998] 3 NWLR (Pt. 109) 250 at 266, G-H; NGIGE v. OBI [2006] 14 NWLR (Pt. 999) 1 at 106-108, D-A on the position of the law that all appeals shall be by way of rehearing and since an appeal is regarded as a continuation of the original suit rather than the inception of a new action, the parties to an appeal should be confined to the parties in the court of first instance. Counsel then submitted that the inclusion of persons who were not parties to the Petition at the lower court in the Notice of Appeal as Appellants without leave of this court renders the Notice of Appeal incompetent.