Afribank Nigeria Plc (Suing Through And By The 2nd – 5th Plaintiffs) & Ors v. Nigerian Deposit Insurance Corporation & Ors (2025)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIOMA EGONDU NWOSU-IHEME, JSC (Delivering the leading judgment)

This appeal challenges the judgment rendered by the Court of Appeal (hereinafter referred to as “the lower court”) on the 17th of July, 2017, in appeal No. CA/L/448/2015 – Afribank Nigeria Plc & 5 Ors v. Nigerian Deposit Insurance Corporation & 2 Ors.

The decision was delivered by a panel of Justices of the lower court, namely, Abimbola Obaseki-Adejumo, Yargata Byenchit Nimpar, and Mohammed Lawal Garba (JJCA).

Dissatisfied with the outcome of the lower court’s decision, the appellants have lodged the present appeal through a notice of appeal dated 14th September, 2017.

This notice of appeal, comprising five grounds, articulates the foundation upon which the appellants seek to challenge and overturn the judgment of the lower court.

Statement of facts

1. The appellants, acting as plaintiffs before the Federal High Court in Lagos, initiated derivative proceedings following the grant of leave in suit No: FHC/L/CS/1286/2009 – Afribank of Nigeria Plc & 50 Ors v. Central Bank of Nigeria & 13 Ors. In this action, the appellants sought various declaratory and injunctive reliefs against the Central Bank of Nigeria (CBN) and its Governor, alleging, inter alia, unlawful interference by the CBN in the operations and governance of the 1st appellant.
2. During the pendency of the above-stated action, the 1st appellant’s operational banking license was allegedly revoked, and its management and operations were subsequently assumed by the 1st and 2nd respondents.
3. Aggrieved by this development, the appellants filed an originating summons at the Federal High Court in Lagos (the trial court), which forms the basis of this appeal. In this summons, the appellants sought multiple orders to invalidate the actions of the 1st and 2nd respondents and to restrain further purportedly unlawful actions.
4. Upon being served with the originating summons, the 1st and 2nd respondents raised objections to the trial court’s jurisdiction. They contended that the appellants had failed to secure the necessary leave to initiate the extant originating summons as a derivative action. In response, the appellants filed an application seeking to amend the originating summons to include questions of construction.
5. The trial court opted to consolidate its determination of the respondents’ jurisdictional objections with the appellants’ application to amend the originating summons. In its consolidated ruling, the trial court dismissed the appellants’ motion to amend and struck out the suit on the ground that the requisite leave for commencing a derivative action had not been obtained.
6. Dissatisfied with the trial court’s ruling, the appellants appealed to the lower court, which joined the 3rd respondent by order. The appellants argued that the leave obtained in suit No: FHC/L/CS/1286/2009 sufficed to satisfy the requirement for leave in the present originating summons, as they had acquired a vested right by virtue of the prior proceedings. Conversely, the respondents contended that the proceedings in the prior suit could not substitute for the requirement of obtaining fresh leave in the current case.
7. The lower court held that suit No: FHC/L/CS/1286/2009 was distinct and independent from the present originating summons. It concluded that the leave granted in the prior suit could not absolve the appellants of their obligation to secure fresh leave for initiating the present derivative action. The court further ruled that leave obtained in a separate action could not be applied to the present originating summons.
8. Following the dismissal of their appeal by the lower court, the appellants have initiated this instant appeal to challenge the adverse decision.

In substantiation of the grounds of appeal, the appellants filed their brief of argument on the 17th of April, 2018. The brief was settled by I.O Aniakor, Esq.

Therein, four issues were nominated for determination. The four issues read as follows:

i) Whether having regards to the facts of this suit, the vested rights of the appellants, as plaintiffs in the said suit No: FHC/L/CS/1286/2009 and on the claims therein, the lower court was right in holding that the appellants’ suit was incompetent for failure to obtain leave before filing the originating summons?

ii) Whether having regards to the issues raised and argued by the parties before the lower court, the question of the competency of the leave sought and obtained in the said suit No: FHC/L/CS/1286/2009 was not raised suo motu and determined by the lower court, and to the utmost prejudice of the appellants and their constitutional right to a hearing thereon?

iii) Whether the lower court did not fail in its duty to make a determination on the issue nos. (ii) and (iii), as raised and argued on behalf of the appellants in the latter’s brief before the lower court and to the utmost prejudice if the appellants and the fair and just determination of their claims in this suit?

iv) Whether having regards to the undisputed facts in this suit, the nature of the proceedings and the claims therein, the lower court was right in declining to invoke its power under section 15 of the Court of Appeal Act Cap C36, LFN 2004, and to apply the same to the determination of this suit and the claims therein on the merits?

Relying on the definition of “vested rights” as articulated in Black’s Law Dictionary (7th ed.), appellants’ counsel asserted that the present suit was predicated on the enabling laws cited within the body of the originating summons and was pursued pursuant to the leave granted in suit No. FHCL/CS/1286/2009. Counsel argued that the subsistence of suit No. FHC/L/CS/1286/2009 conferred upon the appellants a vested right to maintain their claims, given that the earlier suit remains unresolved.

Counsel emphasized that the Central Bank of Nigeria’s (CBN) intervention in the affairs of a licensed Nigerian bank, such as the 1st appellant, is a sine qua non for any subsequent actions by the 1st and 2nd respondents concerning the assets of the 1st appellant.