Jolimair Nigeria Limited & Anor V. Liberty Bank Plc (2016)

LawGlobal-Hub Lead Judgment Report

YARGATA BYENCHIT NIMPAR, J.C.A. 

 This appeal is against the ruling of the Lagos State High Court delivered by HON. JUSTICE K. O. ALOGBA on the 12th October, 2009 relisting the suit earlier struck out. The Appellant dissatisfied with the ruling filed a Notice of Appeal dated 16th of October, 2009 and filed on the 26/10/2009 setting out 3 grounds of Appeal.

The facts relevant to this appeal are that the Respondent initiated a suit for recovery of debt against the Appellants and sometimes during the proceedings particularly after the close of the case for the Respondent, steps were taken by the parties towards amicable settlement which necessitated the adjournment of the suit to allow parties explore amicable settlement. When no report was made the Court struck out the claim and the Respondent filed several applications which were struck out before the application relevant to this appeal was heard and granted to relist the claim earlier struck out.

The Appellants filed their Appellants Brief dated 14th November, 2013 filed on the same date but deemed on the 3/6/14. Appellant filed a reply Brief dated 24th February,

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2014, filed on the 25th February, 2014 and deemed on the 4th of May, 2015. The Respondent’s Brief was dated 20th November, 2013 filed on the same date and deemed on the 3/6/14. All briefs were adopted at the hearing of the Appeal.

The Appellants distilled 3 issues for determination by the Court as follows:
(i) Whether the learned trial judge was right in holding that the application was competent;
(ii) Whether the learned trial judge was right in relisting the suit when there was no sufficient materials before the Court to justify the grant of the application.
(iii) Whether the learned trial judge was right in his interpretation of the provisions of Order 30 of the High Court Civil Procedure Rules of Lagos State to justify relisting the suit.

The Respondent on its part adopted the 3 issues formulated for determination by the Appellants but rephrased issue 2 as follows:
“Whether there was no sufficient material before the Court to justify the grant of the application.”

The Court shall adopt the 3 issues formulated by the Appellants for determination in this appeal.
ISSUE ONE:
“Whether the learned trial Judge was

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right in holding that the application was competent.”

Here, the Appellants submitted that at the time the action was struck out, the Respondent bank was already in liquidation and as such, it lacked the capacity to bring the application to re-list the suit. Further submitted that pursuant to Section 425 (1) of the Companies and Allied Matters Act, the only competent person to continue the action was the liquidator, that the Respondent was in legal parlance a dead party and can neither institute an action nor continue the action in its name. Further relied on the case of N.D.I.C. V. FMB (1997) 2 NWLR (Pt. 49) 735, REEKIE V. LEITH & EAST COAST SHIPPING CO. LTD (LIQUIDATOR) (1911) S.C. 808. The Appellants submitted that there were contradictions in the findings of the trial Court who first held that the Respondent cannot continue the action in its name but later went ahead to find that the application is competent. That a Court must be consistent in its findings, cited OSOLU & ORS v. OSOLU (1998) 1 NWLR (PT 535) 544. GARBA V. GALADIMA & 3 ORS (1993) 4 NWLR (PT 285) 72 and therefore urged the Court to resolve the issue in their favour.

In

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