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.

F.O.B. Okonkwo, Esq. learned counsel for the plaintiff/applicant, relied on the affidavit of 23 paragraphs in support of the notice of motion. He submitted that from 25/3/98 to 15/6/98 when judgment was delivered by this court, the defendant/appellant had ceased to have locus standi to prosecute the appeal in its name since it had been wound-up by the Federal High Court. Learned counsel opined that the judgment of this court entered on 15/6/98 was a nullity. He referred to Nigeria Deposit Insurance Corporation v. Financial Merchant Bank Ltd. (1997) 4 NWLR (Pt.501) no page; Central Bank of Nigeria v. Kotoye (1994) 3 NWLR (Pt.330) 66; Okafor v. Attorney General, Anambra State (1991) 6 NWLR (Pt.200) 659; Obimonure v. Erinosho (1966) 1 All N.L.R. 250. Learned counsel then urged that the application be granted.

C.C. Ngwuluka. Esq. learned counsel for the respondent, placed reliance on the 32 paragraph counter-affidavit filed on behalf of the respondent by one J. I. Okolonji, Esq,. He observed that the party sought to be substituted is not a legal person and cannot be a party to this appeal. He referred to Exhibit A03.

Learned counsel submitted that after the judgment of 15/6/98, this court became functus officio and can no longer tamper with the judgment. This court lacks jurisdiction to entertain this application, learned counsel contended that as at the date when the respondent filed his appeal, this court had jurisdiction. Same is determined at the time of filing the appeal. He referred to M. A. Omishade & others v. Harry Akande (1987) 4 S. C. 109, (1987) 2 NWLR (Pt.55) 158. He referred to Order 5 rule 3 of the Court of Appeal Rules and observed that the court cannot review any judgment by it once given unless it is to correct clerical errors/omissions.

Learned counsel pointed it out that there is no appeal against the judgment anywhere and that applicant should have gone on appeal. He urged that the application be dismissed with costs.

F. O. B. Okonkwo, Esq. replied that appointment of a liquidator robbed the court of jurisdiction to continue an appeal. He referred to s.417 of Companies and Allied Matters Act, 1990. He finally submitted that a company that is wound-up cannot continue an action in its name.

In my considered view, the first serious point touched by C. C. Ngwuluka, Esq. learned counsel for the respondent, is that the party sought to be substituted i.e. “The Provisional Liquidation (sic) of Corporative (sic) and Commerce Bank (Nig.) Plc” is not a legal person and cannot be a party to this appeal. F. O. B. Okonkwo, Esq. learned counsel for the applicant, gave no answer to the point. The order of the Federal High Court on page 2 of Exhibit A03 is “that the Nigeria Deposit Insurance Corporation be and is hereby appointed the Provisional Liquidator of the said Corporative (sic) and Commerce Bank of Nigeria Plc.” (Italics mine).

The party sought to be substituted as the defendant/appellant/respondent is “The Provisional Liquidation (sic) of Corporative (sic) and Commerce Bank (Nig.) Plc.” I do not know the locus standi of this body. It does not appear to be a legal person or entity that can be made a party to this appeal. The proper applicant that has a juristic personality is the Nigeria Deposit Insurance Corporation which body was appointed as the Liquidator of Co-operative and Commerce Bank (Nig.) Plc.

The application is not for the proper party to be substituted for the defendant/applicant. To this extent, the application is incompetent. An applicant cannot be given what he had not applied for in my considered view.

Both sides are ad idem that the judgment of this court, entered on 15/6/98, is a final judgment. Any party who has an axe to grind in respect of the judgment should have appealed within the time stipulated by Law. As at 14/9/98, when the current application was filed, there was no appeal against the judgment entered on 15/6/98.

By this application, the applicant, to my mind, left that which he ought to have done, undone. He surreptitiously wants to drag this court into a melee. But I firmly feel that this court is functus officio.

In Black’s Law Dictionary, 5th Edition at page 606, the term – functus officio is defined as:-

“A task performed. Board of School Trustees of Washington City Administrative Unit v. Benner, 222 N. C. 566. 24 S. E. 2d 259, 263. Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, or accomplished the purpose, and therefore of no further force or authority …”. This court, having entered a final judgment on 15/6/98 performed its task.

It fulfilled its function. It discharged its office and accomplished its purpose. This stand has adequate support from the provisions of Order 5 Rule 3 of the Court of Appeal Rules which goes as follows:-

“3. The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention …” The legitimate thing that I know a dis-satisfied party can do is to appeal on the judgment. Such a party may then file an application for stay for execution pending appeal. That is not the case herein. The applicant, through the back door, as it were, wants this court to obliterate its own judgment, final one, handed out on 15/6/98. In my view, the application missed the target. It did not pray that a juristic person be substituted for the defendant/appellant. Since the court is functus officio, I refuse to tamper with the final judgment handed out on 15/6/98. The application is hereby dismissed. No costs awarded in the prevailing circumstance.

Other Citations: (1999)LCN/0599(CA)