Fbn V. Agbara & Ors (2020)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This motion on notice is brought pursuant to Section 6(6), 36(1) and 233[3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 6 Rule 5(1) (c) of the Supreme Court Rules, 1985 (as amended in 1999) and under the inherent jurisdiction of this Court. In it, the Appellant/Applicant applies for the following reliefs:-

1. An order of this honourable Court extending time for the compilation and transmission of the records of appeal to this honourable Court.
2. An order of this honourable Court deeming the already compiled and transmitted records of appeal as having been properly compiled and transmitted;
3. An order of this honourable Court granting leave to the appellant/applicant to amend its notice and grounds of appeal appearing on pages 1330 – 1338 of the record of appeal by adding grounds of appeal numbers 7, 8 and 9 thereto.
4. An order of this honourable Court granting leave to the appellant/applicant to file and argue additional grounds of appeal numbers 7, 8 and 9 as per exhibit 1 attached to the affidavit in support of this motion.

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An order of this honourable Court deeming the already filed and served amended notice of appeal dated 16th October, 2017 incorporating the additional grounds as per Exhibit 2 attached to the affidavit in support of this motion as having been properly filed and served, the appropriate filing fees having been paid.

6. An order of this honourable Court deeming the already filed and served appellant’s brief of argument (which incorporates arguments on the additional grounds of appeal numbers 7, 8 and 9) as having been properly filed and served, the appropriate filing fees having been paid.
7. And for such further order or orders as this honourable Court may deem fit to make in the circumstances.

There are seven grounds listed in the motion which support the application. Also in support is an eight paragraphs affidavit deposed to by Bojuwoye Charles Shola, a legal Practitioner in the law firm of Wole Olanipekun & Co. the law firm briefed by the appellant/applicant to prosecute this appeal on its behalf. Annexed to the said affidavit are two exhibits numbered 1 and 2. Also in support is a 14 paragraphs further affidavit deposed to by one Adelani Ajibade

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Adedoyin Esq of the same law firm. Attached to the said further affidavit filed on 29/8/2018 are seven exhibits marked 3 – 9 respectively. Applicant’s written address in support of this motion was filed on 22nd October, 2018.

Upon receipt of the Applicant’s motion on notice filed on 16 /10/17, the learned Senior counsel for the Respondents L. E. Nwosu, SAN filed Notice of Preliminary Objection on 9/7/18. It states:-

“TAKE Notice that at the hearing of this appeal or the “Appellant”/Applicants motion for leave to variously amend their Notice of Appeal, add additional grounds of appeal, to deem records compiled two years after and brief of argument as properly filed, whichever comes first, the herein Respondents shall by way of Preliminary Objection pray this honourable Court for the following reliefs:-

1. An order striking out or dismissing the Appellant’s application or appeal against the judgment of the Court of Appeal Port Harcourt Division delivered on 4th December, 2015 by Coram Hon. Justice M. L. Garba JCA, Hon. Justice Ejembi Eko, JCA (as he then was) and Hon. Justice Stephen Jonah Adah, JCA for being incompetent.

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An order in addition to or in the alternative to prayer (1) above dismissing the said appeal against the judgment in prayer (1) above as same constituted a gross abuse of process of this Court since there is no extant lis between the parties following the restoration of shell’s Appeal No CA/PH/396/2012 to the Court below for re-hearing.

3. An order in addition to or in alternative to prayers (1) and (2) above striking out the entire processes filed in these proceedings by the Appellant as well as the purported appearance of counsel for the Appellant as both are legally impossible and therefore incompetent.
4. And for such further or other order as this Court may deem fit to make in the circumstances.

There are grounds for the objection which span five pages. I propose to summarize these grounds because they are too lengthy. The main ground is that the case made by the Appellant at the Court below was that the trial Court entered judgment in suit No BHC/208/2013 against First Bank of Nigeria Plc a non juristic person. That the appellant nevertheless still appealed that judgment to the Court below in the very same name of the said non – juristic person,

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hiring, retaining, instructing counsel and having affidavit sworn on its behalf. That upon a preliminary abjection by the Respondents to the effect that a self confessed non – juristic person cannot appeal as Appellant has done, the appeal was struck out for incompetence by the Court below as the only ratio decidendi. That in this further appeal to this Court, this same self confessed corpus incapus is also purporting to appeal in the same very name of First Bank Plc whose existence has been successfully denied by its very same self.

In support of the preliminary objection is an affidavit of 19 paragraphs deposed to by Zimizu Nwosu Esq, a legal Practitioner in the law firm of Lucius Nwosu & partners, counsel to the Respondents. Respondents also filed a written address in support of the preliminary objection. It was filed on 23rd October, 2018.

Upon receipt of the Notice of Preliminary Objection, the learned senior counsel for the Appellant/applicant, Chief Wole Olanipekun, SAN, filed a counter affidavit of 14 paragraphs deposed to, yet again, by Adelani Ajibade Adedoyin, Esq. Learned Senior counsel also filed a written address on 30th October,

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2018 in opposition to the Notice of preliminary objection.

In the Respondent’s written address, the learned Senior counsel for the Respondents/objectors submitted two issues for determination as follows:-

1. Whether on the admission of the appellant that it was not a juristic person, the basis of which its appeal was struck out at the Court below on 4/72/75, its application and/or appeal in the very same name of FIRST BANK OF NIGERIA PLC are not eo ipso incompetent.
2. Whether by virtue of the provisions of Order 2 Rule 31(2) (c) of the Supreme Court Rules, the Appellant/applicant has shown a prima facie reason for the delay in view of the fact that:-

(a) A restoration of SPDC’s appeal No CA/396/(sic) to the Court below for hearing on the merits did lips facto render the instant further appeal useless and the judgment of Bori High Court birthing it otise?

(b) The later judgment of the Court below dismissing the returnee SPDC’s appeal on 6/6/77 has superceded its earlier ruling of 4th December, 2015 striking out the same appeal for payment of insufficient filing fees (which was reversed by this apex Court) so as to render the instant

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continued appeal and applicant’s motion an abuse of Court’s process.

The learned Senior counsel for the Appellant/Applicant however opined that a sole issue is sufficient for the determination of the Respondent’s objection to wit:-

“Considering the facts and circumstances of this appeal vls – a -vis the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and other applicable laws, whether respondents, preliminary objection is meritorious.”

I shall determine this objection based on the issues as proposed by the Respondents.

On the first issue, the learned senior counsel for the Respondents submitted that the jurisdiction of Courts is only exercisable against existing persons corporeal or corporate. That where an appellant or applicant’s grievance is that the judgment was entered against a non – existent or non – juristic person, it will be an irreconcilable contradiction for such non – existent Appellant/applicant as in this case, to purport to appeal in the very same name it alleges do not exist.

​On the second issue, learned Silk submitted that the failure of SPDC’s appeal No CA/PH/396/15 at the Court

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below formed the basis of calling in and suing on the Bank Guarantee. That the said appeal went to the Supreme Court where it succeeded and the appeal returned to the Court below for hearing on the merits. That the effect of this is that the Bori High Court judgment based on the Guarantee became otiose and unenforceable any more. He submitted that the appellant, rather than seek to prosecute this appeal after the latest 6th of June, 2017 decision, should have realized the futility in the exercise of pursuing a moribund and nuisance value appeal against a judgment of Bori High Court which, with the success of SPDC’s further appeal to this apex Court had become otiose and unenforceable albeit against “a non – juristic person” relying on Ugba v Suswam (2014) 74 NWLR (pt 1427) 264 at 375. He urged the Court not to disturb the ruling of the Court below striking out this appeal for incompetence when it was before them.

​In response, the learned Senior counsel for the Appellant/Applicant submitted that the entirety of the respondents’ contention centres around the substance of the appellant’s appeal before this Court. He contended that the two issues submitted by

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the Respondents for the determination of the preliminary objection are clearly issues to be determined in the appeal.

The learned Silk stressed that grounds 3, 4, 5 and 6 of the Appellant’s notice of appeal challenge the propriety of the lower Court’s decision striking out the appeal before it on the premise that appellant is not a juristic person rather than strike out the suit at the trial Court where the respondents sued the appellant in a non – juristic status. That moreso, the lower Court affirmed the decision of the trial Court given against the non juristic person. That it is this substantive issue that the Respondents want this Court to determine by their issue one.

In furtherance of his argument, the learned SAN for the Appellant submitted that grounds seven, eight and nine of appellant’s notice of appeal challenge the lower Court’s affirmation of the crystallization of the Bank Guarantee when there was a pending appeal by SPDC. That the effect of the said appeal has been an issue of contest between the parties right from the High Court up till the substantive appeal herein, particularly because the lower Court made express pronouncements on

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same and that the validity of the said pronouncement is in issue in the substance of this appeal with extensive arguments already canvassed in appellant’s brief of argument. He urged the Court not to entertain substantial issues at this preliminary stage relying on the case of Odutola Holdings Ltd v Ladejobi (2006) 12 NWLR (pt 994) 321.

After a careful perusal of the affidavit in support of the preliminary objection and the written address in support, and having gone through both the Appellant’s counter affidavit with the exhibits attached and the written address in support, I am of the view that the issues sought to be determined at this interlocutory stage are the same issues to be ventilated in the main appeal. For example, the issue of the Appellant/Applicant, First Bank of Nigeria Plc being a non – juristic person or being a ghost (Courtesy of Respondents’ Senior counsel) was first raised at the trial Court and also at the Court below. Grounds three, four, five and six of the notice of appeal birthing this appeal all touch and concern the propriety of the Court below striking out the appeal before it on the ground that the appellant is not a Juristic

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person.

I need to caution myself at this point that the law forbids a Court delving into the substantive matter, which is yet to be tried at the time of considering a preliminary objection to the hearing of the substantive matter. This Court said this much in Attorney General of the Federation v Attorney General of Abia State (2001) LPELR – 24852 (SC) pages 48 – 49 paragraphs A – E, per Kutigi, JSC (as he then was) thus:-

“l think the less one says at this preliminary stage of the case the better lest one falls into the not uncommon trap of prematurely making observations which might appear to prejudge the issues in the substantive suit yet to be decided by the Court. The law does not permit that (for example Egbe v Onogun (1972) 1 All NLR (part 1) 95; Ojukwu v Governor of Lagos State (1986) 3 NWLR (Pt 26) 35).”

See also Akinrinmisi v Meersk Nig. Ltd & Anor (2013) 10 NWLR (pt 1367) 73, James v INEC (2015) LPELR – 24494 (SC), Duwin Pharmaceutical & Chemical Co. Ltd v Beneks Pharmaceutical & Cosmetics Ltd & Ors (2008) LPELR – 974 (SC), Osagie II & Anor v Offor & Anor (1998) 3 NWLR (pt 541) 205, FSB International Bank Nig.

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Ltd v Imano Nig Ltd (2000) 11 NWLR (pt 679) 620 at 639.

In view of the above position of the law, I shall not say much in this matter lest I find myself making comments that may prejudice the views of the Court hearing the substantive appeal. But suffice it to say that by the issues ventilated in the preliminary objection, the respondents have attempted to pre-empt this Court into determining the substance of the appellant’s appeal at this interlocutory stage of the proceedings.

Considering this matter a bit further will expose the intention of the Respondents in bringing this objection. On page 7 of the Respondents’ written address, particularly, paragraph 6.0, thereof, the Respondents’ intention is exposed as follows:-

“Finally, we urge your Lordship not to disturb the ruling of the Court below striking out this appeal for incompetence when it was before them.”

The above prayer by the Respondents is such that can only be made at the conclusion of hearing the substantive matter. The learned senior counsel for the Respondents urged this Court not to disturb the ruling of the Court below appealed against and at the same time he contends that

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an appeal against the said ruling should not be heard. Let me stop here lest I say things that may dove tail into the substantive matter. Let me conclude this way, as long as there is a judgment against a party, whether it is a ghost or a living person and as long as there is a right of appeal against such a judgment, such parties are entitled to be protected by the Court in respect of such right of appeal. The question may be asked whether the respondents will not seek to enforce the judgment against the alleged ghost? In this appeal, since the issue of non – juristic personality of the appellant was raised from the trial Court till now, the appellants are entitled to ventilate their grievance on the said issue before this Court.

​One issue which I need to comment upon is that the respondents failed to advert their mind to the Notice of Appeal filed by the Appellant. Even after the appellant filed counter affidavit against the preliminary objection with copious affidavit and several exhibits attached, the Respondents did not make any comment on them. And they did not attach any exhibit to their supporting affidavit. This failure has weighed heavily on the

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mind of the Court to accept those exhibits attached by the appellant which tend to show that this appeal is a continuation of the case heard by the two Courts below, after all, an appeal is a continuation of the case from the Court below. See AON v NAMA (2014) 8 NWLR (pt 1408) 1, Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (pt L09) 250, Ngige v Obi (2006) 14 NWLR (pt 999) 1. The parties in this appeal are the same from the Trial Court through the Court of Appeal. Whether appellant is a juristic person or not is an issue to be decided by this Court.

Again, the Respondents had contended that the appellant’s appeal had become “otiose” or ‘moribund”. However, the attention of this Court was drawn by Chief Olanipekun, SAN to page 32 of Exhibit 6 attached to the Appellant’s counter affidavit wherein the lower Court had in concord with the respondents, held otherwise in the following words:-

“l have read the Bank Guarantee, and it is my firm view that the Bank guarantee is limited only to the appeal No PH/596/2072 (formerly CA/B/291/2010) from the judgment of the Federal High Court delivered on 14th June, 2010 … I agree with the Respondents that the 17th

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December, 2012 Bank Guarantee “does not extend to any other transaction” between SPDC and the respondents herein neither does it envisage subsequent proceedings between them after the determination of the appeal No. CA/PH/396/2012.”

The learned Senior counsel, Chief Olanipekun, SAN drew the attention of the Court to ground 7 of the Notice of Appeal which attacks the above findings of the lower Court. I agree with him that by this clear correlation between the above findings of the lower Court and ground 7 of the Notice of appeal, this appeal cannot be said to be moribund.

The learned Senior counsel for the Respondents, L. E. Nwosu, SAN had argued that the appellant did not comply with Order 2 Rule 31(2) (c) of the Supreme Court Rules in that it failed to show a prima facie reason for the delay in bringing this appeal. May I state here that right from the trial Bori High Court, issue of the jurisdiction of the Court was raised as to the non – juristic nature of the Appellant. That issue was also heard by the Court below. The same issue occupies an eminent position in the Notice of Appeal to this Court. Therefore, as was decided by this Court in

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Adigwe v Federal Republic of Nigeria (2015) 18 NWLR (pt 1490) 05, where the ground or grounds of appeal has challenged the jurisdiction of the Court to entertain a suit, the Court has to adopt a permissive approach in considering the reason for the delay in order not to shut out an Appellant with an arguable appeal. Any matter which touches on the jurisdiction of the trial Court, or any other Court for that matter, is never too late for an appellant to seek redress from a higher Court. On page 145 of the report, this Court went further to hold that:-

“However, the requirement of the duality of good and substantial reasons for the delay and grounds of appeal which prima facie show good cause why the appeal should be heard, is subject to an exception: when an issue of jurisdiction is raised in the ground of appeal, the requirement of good and substantial reason for the delay may be dispensed with. This is so because the issue of jurisdiction is so radical in nature and at the foundation of adjudication that it cannot be defeated by the provision of rules of Court. See S. O. Akegbejo & Ors v Dr. D. O. Ataga & 3 Ors (1998) 1 NWLR (pt 534) page 459 – 469.

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proceedings conducted without jurisdiction will be a nullity.”

See also Onashile v Idowu (1961) 2 SCNLR 53, Anadi v Okoli (1977) 7 SC 57, Ukwu v Bunge (1997) B NWLR (pt 518) 527.

In exhibit 2 attached to the motion of the Appellant, which is the Notice of Appeal, Grounds 1, 2, 3, 4, 5, 6,7 , 8 and 9, all of which individually and collectively, raise jurisdictional issues, it becomes apparent that the appellant’s right of appeal deserves to be protected and/or guaranteed by this Court, given the jurisdictionally flavoured grounds of appeal in the Notice of appeal. See Adigwe v Federal Republic of Nigeria (supra), FBN Plc v May Medical Clinics (2001) 9 NWLR (pt 717) 28 at 44 paragraphs F – H, Akiti v Oyekunle (2018) LPELR – 43721 (SC).

From all I have endevoured to say above, I come to an irresistible conclusion that the preliminary objection by the Respondents is unmeritorious and is accordingly overruled.

Appellant’s motion filed on 16/10/17 has been shown to be meritorious and is accordingly granted as prayed. It is hereby ordered as followed:-

1. Time is extended till today for the Appellant to compile and transmit record of appeal

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to this Court.

2. The record of appeal already compiled and transmitted to this Court on 5/07/2017 is hereby deemed properly compiled and transmitted to this Court today, 24/1/2020.
3. Leave is hereby granted to the appellant/applicant to amend its notice and grounds of appeal appearing on page 1330 – 1338 of the record of appeal by adding grounds of appeal numbers 7, 8 and 9 thereto.
4. Leave is also granted to the appellant/applicant to file and argue additional grounds of appeal numbers 7, 8 and 9 as per Exhibit 1 attached to the affidavit in support of this motion.
5. The already filed and served amended Notice of appeal dated 16th October, 2017 incorporating the additional grounds of appeal in terms of exhibit 2 attached to the affidavit in support of this motion is hereby deemed properly filed and served today, 24/1/2020.
6. Appellant’s brief of argument filed on 16/10/17 which incorporates arguments on the additional grounds of appeal numbers 7, 8 and 9 is hereby deemed properly filed and served today, 24/1/2020.

Preliminary objection overruled. Application Granted.

I shall make no order as to costs.

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SC.511/2017(R)