Alex O. Onwuchekwa V. Co-operative and Commerce Bank (Nigeria) Limited & Anor (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

Vide the notice of motion dated 14/9/98 and filed on the same date, the plaintiff/respondent/applicant humbly prayed as follows:-

“(1) For an order substituting the Provisional Liquidator of Co-operative and Commerce Bank (Nig.) Plc in lieu of the above named defendant/appellant as the defendant/appellant/respondent in these proceedings.

Predicated upon prayer (1) being granted and subject to such consequential orders as to adjournment, costs etc. as the interest of justice may dictate in the circumstances:-

(2) For an order setting aside as incompetent the purported proceedings in the above appeal on each of the following dates i.e. 25th March, 1998, 2nd June, 1998 and culminating in the judgment dated and delivered on 15th June, 1998 therein.

(3) For an order directing that the said appeal be set down for hearing on any convenient date suitable to the court and the competent parties on record.

(4) And for such further order or orders as may seem just and/or expedient in the circumstance.”

The application was supported by a 23 paragraph affidavit deposed to by the Plaintiff/Applicant. Three exhibits marked A01 to A03 were attached. Exhibit A01 is the judgment of this court dated 15/6/98. Exhibit A02 is the petition filed by the defendant/appellant at the Federal High Court to wind up itself. Exhibit A03 is the order of the Federal High Court dated 12/3/98, winding up the defendant/appellant.

The Nigeria Deposit Insurance Corporation was appointed as the Provisional Liquidator of the defendant/appellant.

On behalf of the purported defendant/appellant/respondent party sought to be substituted, one Joseph Ifechukwu Okolonji, a staff of Nigeria Deposit Insurance Corporation deposed to a 32 paragraph counter-affidavit opposing the notice of motion. Attached to the counter-affidavit is Exhibit ‘A’ which contains revocation of banking licences by the Governor of Central Bank of Nigeria with commencement date being 16th January, 1998.

The gist of the plaintiff/applicant’s affidavit in support of the application should be summarised briefly. Action was commenced against the defendant/appellant in 1990 and judgment was obtained in the High Court of Enugu State on or about 19/9/95. The defendant/appellant appealed against the said judgment on or about 7/3/96 and secured an order of stay of execution pending the hearing and determination of the appeal. On 13/1/98, the appeal was in the open court set down for hearing on 25/3/98. Shortly thereafter, the defendant/appellant was gazetted among 25 other banks declared as failed banks with their licences revoked. On 30/1/89, defendant/appellant petitioned at the Federal High Court (Enugu Division) to have itself compulsorily wound-up. On 12/3/98, prayer was granted. All the stated facts about winding-up of the defendant/appellant were not brought to the knowledge of this court on 25/3/98 when the appeal was argued. On 15/6/98, this court handed out its judgment in Exhibit A01.

From the counter-affidavit, the facts that can be garnered are that this court gave its final judgment on 15/6/98. The Provisional Liquidator or Co-operative and Commerce Bank Nigeria Plc. is not competent to proceed with the appeal.

There is no appeal from the judgment of this court pending in any court even now.

The judgment of this court is a final one and this court is functus officio. Neither the Nigeria Deposit Insurance Corporation nor the Provisional Liquidator of Co-operative and Commerce Bank (Nig.) Plc wants to be substituted for the defendant/appellant.