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.