Afro Continental Insurance Corporation Limited & Ors V. Nigeria Deposit Insurance Corporation (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Lead Ruling)

This is a ruling in respect of Appellants/Applicants’ motion for the restoration of appeal and the Respondent’s preliminary objection challenging the competence of the motion.

By a motion on notice dated and filed on 8/03/2012 is seeking for an order restoring this appeal which was struck out on 11th March, 2010 for failure of Appellant to properly compile records on the following grounds:

1. “The records of appeal compiled on behalf of the Appellant were incomplete which caused this honourable court to dismiss the appeal.
2. The Appellant/Applicant has been exposed to serious damage as a result of the error of counsel.
3. The Appellant desires to vigorously and seriously prosecute the appeal.
4. It is in the interest of justice to allow a restoration of the appeal.”

The said application was supported by four affidavits viz; an 11 paragraphs Affidavit sworn to by one Dilibe Chinedu Ifezue, junior counsel in the law firm of Adekunle Ojo & Associates, learned counsel for the applicant on 8/03/2012 with 5 exhibits; a 10-paragraph further and better affidavit sworn to by one Chairman Okoloise, a Legal Practitioner in the Law Firm of Adekunle Ojo & Associates on 28/02/2013 with 1 exhibit; a 15-paragraph second further and better affidavit sworn to by the same Chairman Okoloise as described above on 26/03/2013 with 5 exhibits; a 17-paragraph third further and better affidavit sworn to by one Paul Ofomola, a Legal Practitioner in the Law Firm of Adekunle Ojo & Associates with 2 exhibits.

There is also a written address in support dated and filed on 10/6/2013. The Appellant further filed a reply address in response to the Respondent’s written address and a counter-affidavit in opposition to the preliminary objection. They were filed on 20/03/2013 and 27/06/2013 respectively.

Opposing the application, the Respondent filed an 11-paragraph counter affidavit dated 27/03/2012, sworn to by one Albert Nnamuka, a Litigation Secretary in the law firm of G. N. Uwechue & Co., the learned counsel for the Respondent with 4 exhibits; a 5-paragraph further counter affidavit dated 5/04/2012 sworn to by the same Albert Nnamuka with 1 exhibit and a written address in response dated 8/03/2014 and filed 17/12/2013.

The Respondent further filed a Notice of Preliminary Objection dated 11/06/2013 and filed 14/06/2013 challenging the jurisdiction of this court to hear the motion and the appeal on the following grounds:

1. The court has become functus officio upon the appellants’ appeal to the Supreme Court filed on the 9th of April, 2012 and subsequent dismissal of the appeal by the Supreme Court on 20th March, 2012.
2. The appeal is incompetent in that the Notice of Appeal dated and filed on 20th May, 1999 against the judgment of the Failed Banks Tribunal in Suit No. FBFMT/L/Z.II/03/06 that initiated the appeal was not signed by a named legal practitioner and is thereby incompetent.
3. No appeal lies to this Honourable Court from the decision of Failed Banks Tribunals.

The notice is accompanied by an 18-paragraph affidavit sworn to by one Emeka Nwosu, a legal practitioner in the law firm of Messrs G. N. Uwechue & Co on 14/06/2013 with 9 exhibits as well as a written address dated 14/06/2013.

Due to the fact that there is a preliminary objection by the Respondent challenging the competency of the motion, the objection shall first be considered and resolved before deciding whether to proceed on to determining the application filed by the Appellant/Applicant.

I have already outlined the processes filed in relation to the notice of preliminary objection filed by the Respondent Counsel. In his written address in support, Respondent’s counsel formulated three (3) issues for determination thus:

1. Whether the court has jurisdiction to grant this application to restore the appeal in the circumstances.
2. Whether this appeal initiated with a notice of appeal not signed by a named legal practitioner is competent.
3. Whether this honourable court has any jurisdiction over this appeal from the decision of a Failed Bank Tribunal in suit No FBFMT/L/Z.II/03/96.

The Appellant/Applicant on its own formulated the following issues for determination of the preliminary objection:

1. Whether or not, this honourable court is functus officio in respect of the application of the Applicants brought pursuant to Order 8 Rule 20 of the Court of Appeal Rules 2011 for restoration of this appeal which was struck out pursuant to Order 8 Rules 18 of the Court of Appeal Rules 2011?
2. Whether or not the jurisdiction of this honourable court to hear an appeal can be challenged before the Appeal is entered?

IN THE ALTERNATIVE to Issue ‘B’

3. Whether or not the Notice of Appeal signed by Professor S. A. Adesanya SAN, is competent in law.
4. Whether this court does not have jurisdiction to hear and determine the appeal pending at the Special Appeal Tribunal from final decision of the Failed Bank Tribunal.

Let me hasten to state here that, at this stage, no appeal has been entered before this court in respect of the matter in dispute between the parties. Hence, no appeal in respect of this matter is yet before the court. It is trite that the jurisdiction of an appellate court can be determined only when an appeal is entered.

Therefore, the jurisdiction of this court can only be challenged when there is a valid appeal before this court. The implication of this is that though the Respondent’s objection is predicated upon three grounds, the first ground which touches on the competence of the Appellant’s motion to restore the appeal is the only one that can be validly raised at this stage, the other two grounds relates to the competence of the appeal cannot be raised until and/or unless there is a proper appeal before this court.