Oredola Okeya Trading Co. & Anor V. Bank Of Credit & Commerce International & Anor (2014)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

By a Motion on Notice dated 6th of June, 2013 and filed on same date, the applicant prayed for the following reliefs:

i. “AN ORDER of this Honourable Court substituting the deceased 2nd appellant (Alhaji Yesufu Alabi Amolegbe) with the applicant (Alhaji Sikiru Amolegbe) in this appeal.

ii. AN ORDER of this Honourable Court substituting the 1st respondent on record (Bank of Credit & Commerce International), with the Nigeria Deposit Insurance Corporation (the Corporation) in this appeal.”

The Motion, submitted learned counsel for the applicant, was brought pursuant to Order 2 Rule 28(1); Order 8 Rules 9(1), (2), (11) and (12) of the Supreme Court Rules; Section 40 of the Nigeria Deposit Insurance Corporation Act 2006; Section 425 of the Companies and Allied Matters Act, Cap. C20 LFN, 2004 and under the inherent jurisdiction of this Honourable Court.

The motion was supported by five grounds and an affidavit in support of six paragraphs sworn to by one Elizabeth Oludoyin Onatade. There were filed further affidavits in support; counter affidavits and exhibits by the respective parties.

In moving the motion on Notice, the learned counsel for the applicant, Mr. Lawal, stated that he relied on all the paragraphs of the affidavit and further affidavit in support of the motion. He also relied on all the exhibits annexed to the affidavits.

Learned counsel submitted that the 2nd appellant in the appeal is deceased and has left behind a living heir, Alhaji Sikiru Amolegbe who is desirous of prosecuting the appeal and willing to be substituted for the 2nd appellant. He further submitted that the banking license of the 1st respondent which subsequently became known as the African International Bank Limited has been revoked by the Central Bank of Nigeria since the commencement of the appeal. By the provisions of Section 40 of the Nigeria Deposit Insurance Corporation Act 2006 and Section 425 of the Companies and Allied Matters Act, Cap. C.20 LFN, 2004, upon such revocation, the Corporation shall be deemed to have been appointed the provisional liquidator of the 1st respondent with power to defend any legal proceeding on behalf of the 1st respondent.

Learned counsel urged that it is essential for the just and proper determination of the pending appeal that these parties be substituted.

Mr. Hanafi for the 1st respondent in the main appeal did not object to the grant of the application.

Mr. Ogbonna, for the Nigeria Deposit Insurance Corporation (the Corporation for short herein), person sought to substitute BCCI, opposed the application. He filed a counter affidavit and further counter affidavits supported by exhibits. He relied on same. In his submissions the learned counsel stated that this application for substitution was filed after 22 years from the date Bank of Credit & Commerce International (BCCI) ceased to exist. It ceased to exist in 1991. An application for substitution was not made at the trial court or Court of Appeal throughout this period and BCCI was represented by a counsel. The position of the law, learned counsel subfmitted, is that a company remains in existence until dissolved. If any party ought to be substituted, it ought to be the African International Bank Limited and not the NDIC. Learned counsel stated further that NDIC is a liquidator to AIB. AIB is still in existence and it can be sued as a company in liquidation. He cited Section 454 of the Companies and Allied Matters Act, 1990 LFN; Corporative and Commerce Bank Ltd. v. Silver Wax International Ltd. (1999) 7 NWLR (Pt.609) 97 at p. 103 A – H. NDIC, argued learned counsel, has nothing to do with the applicant. He finally urged the court to refuse the application.

Mr. Lawal for the applicant said that he had nothing to say in reply to the submission of Mr. Ogbonna.

Now, the central issue for determination in this application, going by the facts contained in the affidavit evidence is substitution: (a) for Alhaji Sikiru Amolegbe to substitute the 2nd appellant, Alhaji Yesufu Alabi Amolegbe and (b) for Nigeria Deposit Insurance Corporation to substitute Bank of Credit and Commerce International, 1st respondent on record. The first leg of the application i.e. (a) as above, is a harmless one and poses no problem and as none of the parties is opposed to its grant. It is accordingly hereby, granted as prayed. Leave is granted to Alhaji Sikiru Amolegbe to substitute Alhaji Yesufu Alabi Amolegbe, 2nd appellant in the appeal who is now deceased.

For the 2nd leg of the application i.e. (b) as above, there is need to consider the depositions in the affidavit in support, further affidavits filed by the applicant and the counter affidavit and further counter affidavit filed by the NDIC in opposition to the grant of that leg of the application.