➥ CASE SUMMARY OF:
Jolimair Nigeria Limited & Anor V. Liberty Bank Plc (2016)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Relisting of case;
Dissolution of company;
Liquidator and liquidation.
➥ CASE FACT/HISTORY
The facts relevant to this appeal are that the Respondent initiated a suit for recovery of debt against the Appellants and sometimes during the proceedings particularly after the close of the case for the Respondent, steps were taken by the parties towards amicable settlement which necessitated the adjournment of the suit to allow parties explore amicable settlement. When no report was made the Court struck out the claim and the Respondent filed several applications which were struck out before the application relevant to this appeal was heard and granted to relist the claim earlier struck out.
This appeal is against the ruling of the Lagos State High Court delivered by HON. JUSTICE K. O. ALOGBA on the 12th October, 2009 relisting the suit earlier struck out. The Appellant dissatisfied with the ruling filed a Notice of Appeal dated 16th of October, 2009 and filed on the 26/10/2009 setting out 3 grounds of Appeal.
➥ ISSUE(S)
I. Whether the learned trial Judge was right in holding that the application was competent?
II. Whether the learned trial judge was right in relisting the suit when there was no sufficient materials before the Court to justify the grant of the application?
III. Whether the learned trial judge was right in his interpretation of the provisions of Order 30 of the High Court Civil Procedure Rules of Lagos State to justify relisting the suit?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPOINTMENT OF A LIQUIDATOR DOES NOT BY ITSELF RESULT IN THE DEATH OF THE COMPANY
‘the fact of winding-up of a Company or the appointment of a liquidator does not by itself result in the death of a corporate body thereby removing its legal personality.” It is clear from above excerpts from the judgment of the Supreme Court that the mere appointment of a liquidator for a bank does not mean the bank is dead legally speaking. The contention of the Appellants that the Respondent is dead is flawed and not supported by law. A company ceases to exist the day the Court orders its dissolution. Until such an event, the company cannot be considered dead. Furthermore, even the said Section 425 (1) (a) of CAMA relied upon by the Appellant used the following words: “Bring or defend any action or other legal proceedings in the name and on behalf of the company….” “In the name” and “on behalf of the company” cannot by any stretch of imagination mean that the name of the company cannot be used. Thus, the authority of NDIC V. FMB (1997) 2 NWLR (PT. 49) 735 at 756 – 757 relied upon by the Appellants does not help them because the holding of ACHOLONU JCA (as he then was) did not say what the Appellants are imputing to him.’
THE APPLICANT CAN MAKE APPLICATION IN ITS NAME
‘It is wrong for the Appellants to say that the Respondent who is not yet “dead” cannot make an application in its name. Besides, even if the liquidator now has the powers to initiate proceedings in its name, or take over the case, the substantive suit herein was alive and subsisting before the appointment of a liquidator and until the liquidator takes over pursuant to order of the Court, it is only the Respondent that can apply to relist the suit which can be by way of motion. Substitution can only take place after the suit has been relisted. A party not before the Court cannot apply to relist a matter struck out in this circumstance. I see no merit in the arguments of the Appellants and consequently, this issue is resolved against the Appellants and in favour of the Respondent.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[RESPONDENT ADDUCED SUFFICIENT REASON ON WHY THE MATTER SHOULD BE RELISTED
‘Let me first of all say that documents tendered before a Court at the trial of a case become part and parcel of the evidence to be considered in the determination of issues before the Court. Consequently, since the earlier application struck out by the trial Court and relied upon by the Appellants was tendered as an exhibit at the trial Court, it can be examined by this Court in the determination of the case before it. That being said, I still do not see any material contradictions in the earlier affidavit to warrant an interference with the exercise of the Court’s discretion. While the Respondent had earlier stated that its counsel had failed to follow up with the matter, it now posits that the reason for the delay is the consolidation exercise that was carried out in the banking sector which affected the Respondent. Indeed, the Respondent was affected by the consolidation exercise, its banking license was revoked and a liquidator was appointed to oversee the management of its affairs. Consequently, internal reshufflings must have been underway and this affected the continuation of the matter at the trial Court. More so, the Appellants have not in any way denied the reasons adduced by the Respondent in the application allowed by the trial Court for the delay in filing its application. Furthermore, the Court of Appeal is always wary of interfering with the exercise of discretion by a trial Court unless it appears that the result of the order will occasion injustice or defeat the right of the party’s altogether, see the case of U.C.C.N. V. DANGOTE IND. LTD [2006] 6 NWLR (PT. 980) PG. 616. By giving room for the matter to be decided on the merits, I do not see how any of the party’s rights will be defeated or the injustice occasioned. The parties had already gone a considerable distance in the determination of the case and to shut them out when there are sufficient reasons to re – list the case will be tantamount to meting out injustice on the parties. I see no need to interfere with the discretion of the trial Court and I hold as such. The issue is resolved in favour of the Respondent.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[UNLESS A COURT PRONOUNCES A JUDGEMENT ON MERIT, IT HAS THE POWER TO RELIST THE CASE
‘I also agree with the submissions of the Respondent that Order 30 Rule 2 of the Lagos State High Court Civil Procedure Rules is not applicable in this case. The Provision states: “When a cause is called for hearing if the defendant appears and the claimant does not appear, the Defendant, if he has no counter – claim, shall be entitled to Judgment dismissing the action, but if he has a counter-claim, then he may prove such Counter – claim, so far as the burden of proof lies upon him.” This provision can only be invoked where it is only the claimant that is not in Court but the defendant is in Court and has applied to the Court for judgment dismissing the action. Here, both parties including the Appellants (Defendants at the lower Court) were absent in Court on the day the matter was called and struck out. Appellant cannot claim benefit under this provision when it was absent from Court. Besides, even if this provision is applicable, the judgment of dismissal pursuant to the said Order 30 Rule 2 is a default judgment and can still be set aside by the trial Court subject however to certain conditions. The law is clear that unless and until the Court pronounces a judgment on merit or by consent, it retains the power to set aside its own default judgment, see the case of MOHAMMED V. HUSSEINI (1998) 11 – 12 SC 135, TENO ENG. LTD. V. ADISA (2005) 10 NWLR (PT. 933) 346. In essence, I see reason with the trial Court’s reliance on Order 30 Rule 1 in relisting the suit. The issue is resolved against the Appellants.’]
.
.
.
✓ DECISION:
‘In the face of the above findings, this appeal is unmeritorious and it is hereby dismissed. I affirm the ruling of HON. JUSTICE K. O. ALOGBA of the High Court of Lagos State delivered on the 12th day of October, 2009.
N50,000 costs is awarded in favour of the Respondent.’
➥ FURTHER DICTA:
⦿ IMPLICATION OF A MATTER BEING STRUCK OUT – A MATTER STRUCK OUT CAN BE RELISTED
So when a matter is struck out, it is still alive and kept in the Court’s general cause list and when an order is made on a matter not heard on the merits, it amounts to striking out simpliciter, see the case of PANALPINA WORLD TRANSPORT (NIG) V. J. B. OLADEEN INTERNATIONAL & ORS (2010) 19 NWLR (Pt. 1226) 1 at 20 where the Court held thus: “When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause.” — Y. B. Nimpar JCA.
⦿ DEFINITION OF A LIQUIDATOR
A liquidator was defined in the case of VICO AGRO ALLIED INDUSTRIES LTD V. ORIENT BANK (1998) 1 FBTLR 11, wherein AGBAJE JSC said:
“A liquidator or receiver performs his functions in relation to the properties of another person other than himself.”
⦿ WITHDRAWAL OF BANKING LICENCE DOES NOT EXTINGUISH LIFE OF A COMPANY
It is trite that the withdrawal of the banking license does not extinguish the life of the company, see OREDOLA OKEYA TRADING CO & ANOR V. BANK OF CREDIT & COMMERCE INTERNATIONAL & ANOR IN RE: MR. SIKIRU AMOLEGBE & ANOR (2014) 8 NWLR (PT 1408) 77 where the apex Court held thus:
“Liquidation is distinguishable from dissolution which is the end of the legal existence of a company. Liquidation may precede or follow dissolution. Thus, mere revocation of a banking license of a bank, without more, as claimed by the instant applicant cannot bring to an end the juristic life of the bank or corporation. Likewise, where a bank or corporation ceases to operate or closes its business that does not determine the legal existence of such a bank or corporation’. In the same judgment the Supreme Court said as follows: “The dissolution of a legal person is analogous to the death of an ordinary person. Now dead men are no longer persons in the eye of the law as they have laid down their legal personality with their lives at death. Also by Section 454(1) & (2) of the Companies and Allied Matters Act Cap. 59, a company ceases to be from the date the Court orders its dissolution. Thus, a company dies on its dissolution.” — Y. B. Nimpar JCA.
⦿ DOCUMENTS TENDERED DURING TRIAL BECOMES PARCEL OF EVIDENCE TO BE CONSIDERED
Let me first of all say that documents tendered before a Court at the trial of a case become part and parcel of the evidence to be considered in the determination of issues before the Court. — Y. B. Nimpar JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Yargata Byenchit Nimpar, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
