Eco Bank Nigeria Plc V. Michael C. Metu & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A., (Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of P. O. Nnadi; J of the Imo State High Court. Suing at Owerri delivered on the 27th day of April, 2009 in Suit No. HOW/302/2003, wherein the learned trial judge granted leave to the 1st Respondent as Plaintiff to join the Appellant as Defendant in the said suit.

The 1st Respondent had taken out a Writ of Summons against the 2nd and 3rd Respondents dated the 04/11/2003 and filed the same day. He subsequently filed a Statement of Claim which was subsequently amended by leave of the trial court on the 25/9/2006. The said Amended Statement of Claim is dated the 06/11/2006 and filed the 22/11/2006. Therein, the 1st Respondent as Plaintiff claimed at paragraph 24, as follows:

(a) N50,000,000.00 (Fifty Million Naira) as damages.

(b) An Order compelling the defendants to discharge and to release the Plaintiffs Certificate of Occupancy and property title document No. 39 at page 39 in volume 294 of the Land Registry, Owerri over which the 1st Defendant created a legal mortgage.

In the course of the proceedings, the 1st Respondent again filed a motion on Notice dated the 24/11/2008 and filed the 25/11/2008, praying for the following reliefs:

“(1) AN ORDER court (sic) granting the Plaintiff/Applicant leave to further amend the Amended Writ of Summons’ the Amended Statement of Claim and other processes in this suit as follows:

(a) By substituting Hallmark Bank Plc with ECO BANK NIGERIA PLC (which has acquired Hallmark Bank Plc) as the 1st defendant in this suit.

(b) Consequent upon the substitution, by amending the Amended Writ of Summons and Amended Statement of Claim in the way and manner shown and/or underlined in the Amended Writ of Summons and the Amended Statement of Claim hereto.

2) AN ORDER of court deeming the further Amended Writ of Summons and the further Amended Statement of claim filed and served on the defendants as properly filed and served, necessary filing fees having been paid.

AND FOR SUCH further order or Orders as this Honourable Court may deem fit to make in the circumstances

The motion was supported by an affidavit of 6 paragraphs wherein he deposed to facts necessitating the application. The motion was opposed by the Appellant who filed a Notice of Preliminary Objection thereto. He also filed a Counter Affidavit of 10 paragraphs also in opposition to the motion. The learned trial judge took the preliminary objection together with the substantive motion. After considering the Written Addresses of counsel, the learned trial judge in a considered ruling dated the 27/4/2009, dismissed the preliminary objection and granted the reliefs sought by the 1st Respondent as the Applicant, pursuant to Order 11 Rules 3, 5, 15 and 34 of the Imo State High Court (Civil Procedure) Rules, 1988 (now Order 13 Rules 5, 6, 8, 17, 19, 29 and 31 of the Imo State High Court (Civil Procedure) Rules, 2008. Consequently, he ordered as follows:

1. That leave is hereby granted to the Plaintiff/Applicant to add and join ECOBANK NIGERIA PLC as a Defendant in this suit.
2. That leave is granted the Plaintiff/Applicant to Amend the Amended Writ of Summons and Amended Statement of Claim filed in this suit to reflect the name of ECO BANK NIGERIA PLC herein joined as a Defendant in this suit and cause same to be served on all the Defendants.
3. I make no order as to costs.

It is that Ruling that the Appellant is aggrieved by and has now filed this appeal. The Notice of Appeal was filed consequent upon the leave of this court made on the 1st day of February, 2011. The Notice of Appeal which was dated the 01/2/2011 was filed on the same day. It consists of three (3) Grounds of Appeal, which are hereunder reproduced, but without their particulars as follows:

1. The learned trial judge erred in law when he held that the 1st Respondent’s Motion on Notice dated 24th November, 2008 does not suffer from any defect.
2. The learned trial judge misdirected itself on the facts when he held that:

“From the averments in the Counter Affidavit of ECO BANK NIG, PLC, it admitted acquiring some assets of Hallmark Bank Plc but denied acquiring the entire assets and liabilities of Hallmark Bank Plc as alleged and claimed by the Plaintiff/Applicant. It follows that having admitted the acquisition of some of Hallmark Bank Plc, there is transmission of the interest of Hallmark Bank Plc in the acquired assets of Eco Bank Nig. Plc and that makes Eco bank Nig, Plc a necessary party to the present proceedings and whose presence is necessary for the effective and effectual determination of the issues in controversy including the extent of acquisition of the assets and liabilities of Hallmark Bank Nig. Plc, which issues the parties would be required to proffer evidence at the trial.”