Lajibam Auto & Agric Concerns Ltd & Anor V. United Bank For Africa Plc & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated and filed on 23/10/2012, the appellants/applicants prayed this court for:

1. AN ORDER of this Honourable Court joining NIGERIA DEPOSIT INSURANCE CORPORATION (NDIC) and CENTRAL BANK OF NIGERIA as the Co-Respondents in this appeal.
2. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.

GROUNDS OF THE APPLICATION

1. The transaction that led to this appeal took place sometimes in 1996 when the then TRADE BANK PLC was still in existence.
2. Due to the restructuring and consolidation of finance house introduced by the Central Bank of Nigeria, Nigeria Deposit and Insurance Commission was appointed by the order of court to liquidate the asset of TRADE BANK PLC.
3. UNITED BANK FOR AFRICA, PLC who acquired part of the asset of the TRADE BANK PLC was initially substituted for Trade bank as Respondent in this appeal by the order of this Honourable Court made on the 30th January, 2012 on the application of the appellants but United Bank for Africa later brought en application for the court to strike out her name from the appeal as what she acquired from TRADE BANK PLC did not include recovery of loan but to only settle TRADE BANK PLC depositors.
4. United Bank for Africa attached “Purchase and Assumption Agreement” between her, Nigeria Deposit Insurance Corporation, and Central Bank of Nigeria and stated that from that Agreement the only person that can sue and be sued in respect of Trade Bank Plc are parties to be joined.
5. There is need to join Nigeria deposit Insurance Corporation and Central Bank of Nigeria as Co-Respondents in this appeal so that there will be proper and necessary parties before the court.
6. The joinder will enable the court to effectively and efficiently determine this appeal justly.
7. This Honourable Court has unfettered power to grant this application.

The application, which was brought pursuant to orders 4 rules 1 and 10, 7 rule 1 and 15 rule 2 of the Court of Appeal Rules, 2011, Section 15 of the Court of Appeal Act and inherent jurisdiction of this court, is supported by a 5- paragraph affidavit deposed to by Tayo Fatola, a litigation clerk in the chambers of the applicants’ counsel. There is a 5-paragraph counter-affidavit filed by the respondent, United Bank for Africa Plc, on 06/12/2012. There is another counter-affidavit of 4 paragraphs filed by the first party to be joined, the Nigeria Deposit Insurance Corporation, abridged to “the Corporation” herein, on 23/11/2012. The second party to be joined, the Central Bank of Nigeria, abbreviated to “the CBN” hereunder, filed a 10-paragraph counter-affidavit on 19/11/2012.

Sequel to the stiff opposition launched by the Corporation and the Bank, by dint of their counter-affidavits, this court, on 20/11/2012, directed parties to file written addresses. In due compliance with that directive, parties filed and exchanged their written addresses. The application was heard on 17/01/2013. In that regard, learned counsel for the appellants, S.T Abubakar, Esq., adopted the applicants’ written address, filed on 27/11/2012, as representing his arguments for the application. In the same vein, learned counsel for the respondent, Adedayo Adediji, Esq., adopted the respondent’s written address, filed on 06/12/2012, as representing his arguments for the application. On the other hand, learned counsel for the Corporation, A.M Mohammed, Esq., intimated the court that it, the corporation, did not file any written address. The learned counsel for the Bank, Y.A Dikko., Esq., adopted the Bank’s written address, filed on 06/12/2012, as forming his arguments against the application. Learned counsel furnished the court with a list of additional authorities dated 11/12/2012.

In arguing the application, learned counsel for the applicants, via the written address, submitted that the effect of paragraphs 4 of the applicants’ affidavit is that the Corporation and the Bank are necessary parties to the appeal. Learned counsel posited that his submission is corroborated by exhibit A attached to the application filed by the respondent on 13/11/2012. He urged the court to look at and rely on the said exhibit A since a court has the inherent power to look at document in its file while writing judgment despite the fact that same was not tendered and admitted as exhibit.

He place reliance on the cases of Oyewole V. Akande (2009) 15 NWLR (p. 1163) 119 at 148 and I.F.A. Int’l Ltd V. L.M.B. Plc (2005) 9 NWLR (Pt. 930) 274 at 291 to support his submission. He referred to the cover Page, pages 6 and 21 of that exhibit A and maintained that the Corporation and the Bank played salient roles in the life of the Trade Bank Plc, a defendant bank whose assets were taken over by the respondent.

Learned counsel contended that the appeal would not be completely determined without the presence of the two parties sought to the joined as the applicants must make reference to them which would necessitate their being entitled to fair hearing and protection of their rights and interests. He relied on the case of UBA Plc. V. Osazee (2011) 7 NWLR (pt.1246) 293 at 305 and G & T Investment Ltd. V. Witt & Bush Ltd. (2011) 8 NWLR (pt.1250) 500 at 532 to support his contention.

He added that joining the Corporation and Bank is necessary so as to make them bound by the result of the appeal. He cited the case of P.W.T (Nig) Ltd, V. J.B.O Int’l (2011) All FWLR (pt.564) 21 at 38 to buttress his view. He noted that the court has unfettered power to join any party to any proceedings, citing the case of F.M.S.T. V. F.M.W.H (2009) 17 NWLR (pt. 1171) 510 in support of the postulation.

He argued that the averment in the affidavit of the Bank were general denial which did not controvert the depositions in the applicants’ affidavit and so unacceptable in law, relying on the case of Sanusi Bros (Nig) Ltd. V. Cotia C.E.I.S.A (2000) 11 NWLR (pt.679) 566 at 568, F.M.S.T. v. F.M.W.H (supra). He further argued that the counter-affidavit of the corporation did not debunk the applicants’ affidavit and so the latter deemed admitted. He referred to the case of Okoebor V. Police Council (2003) 12 NWLR (pt.834) 444 at 472 to support his argument. He described the only material deposition in paragraph 4 of the Corporation’s counter-affidavit as a general or sweeping denial not recognized in law and not in keeping with the rules of affidavit evidence. In support of that postulation, he cited the case of Ogunsola v. Usman (2002) 14 NWLR (pt. 788) 636 at 657. Learned counsel, based on those submissions, prayed the court to grant the application.

For the respondent, its learned counsel urged the court to take judicial notice of the said exhibit A under Section 122(m) of the Evidence Act. He referred to pages 6, 20, 21, 22 and 23 of that exhibit A and insisted that the Corporation and Bank are saddled with the liabilities, litigations and court proceedings before and after it, exhibit A. He posited that courts would always enforce the agreement between parties as in exhibit A. He relied on the cases of Best (Nig) vs Blackwood, Hodge (Nig) Ltd & 2 Ors (2011) 1-2 SC (pt.1) 55 at 74 and Ozigi V. UBN Ltd (1994) 3 SCNJ 42 at 59. Learned counsel further urged the court to take judicial notice of Appeal No. CA/IL/35/2007 between: Dragetanos Construction (Nig) Ltd vs 1 FAB-Machis ventures Ltd 2. Nigeria Deposit Insurance Corporation wherein the NDIC was substituted for the defunct Trade bank plc by this court. Finally, learned counsel prayed the court to grant the application.

As already noted, the Corporation filed no written address either for or against the application.

On behalf of the Bank, its learned counsel submitted, per contra, that it is not a necessary party to be joined to the appeal. He stated that exhibit A, PURCHASE AND ASUMPTION AGREEMENT, on which the applicants based the application, was not based on the claim before the court, but rather in defence of the respondent. Learned counsel enumerated the conditions for joinder of a person as a necessary party as established in the cases of Green as Green (2001) FWLR (pt.76) 795; Onoge v. Odita (2008) All FWLR (pt.409) 539; Ajayi V. Jolayemi (2001) FWLR (pt. 55) 586. He persisted that those conditions were lacking in the application. Learned counsel further submitted that the Bank performed its duty under Section 40(1) of the Corporation Act in relation to the liquidation of Trade bank Plc in the exhibit A.

He added that the exhibit A was never attached to the application and that the court would not rely on it. He referred to the case of Federal Mortgage Finance Ltd V. Ekpo (2005) All FWLR (Pt.2487) 1667. He insisted that the court should not take judicial notice of the said exhibit A. Learned counsel posited, in the alternative, that from the tenor and content of the exhibit A, it was the Corporation that was the liquidator of the Trade bank Plc and acquired its assets on its liquidation. He stated that the Bank has no duty towards a liquidator bank except to perform its statutory duty to the liquidator under Section 41 of the Bank Act. He maintained that the non-joinder of the Bank would not defeat the appeal, relying on the case of Babayeju V. Ashamu (1998) 9 NWLR (Pt.567) 546.