Suntrust Bank Nigeria Limited Vs. Eaton Acquisition Limited ( sued for itself and on behalf of promoters of Our Bank Limited ( in formation) & 1ORS, Judgment Delivered by Habeeb Adewale Olumuyiwa, JSC, InSC/CV/999/2022

SC/CV/999/2022

JUDGEMENT 

DELIVERED BY  Habeeb Adewale Olumuyiwa, JSC

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Moore Aseimo Abraham Adumein, JSC. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and I abide the conclusion reached.

The action leading up to this appeal was commenced by the first Respondent against the second Respondent in the Federal High Court as Suit No: FHC/L/CS/115/2021. The Appellant was not a party to the action. The Federal High Court entered judgment in the action on the 17th of February 2021 in favor of the first Respondent. Sequel to the entry of judgment, the Appellant as Interested Party/Applicant, filed an application on the 12th of March 2021 before the Court of Appeal, Lagos Division, praying for an order of the Honourable Court granting it leave to appeal as an Interested Party against the said judgment of the Federal High Court. The first Respondent opposed the application and caused a counter-affidavit to be filed thereto on the 10th of November 2021. The second Respondent also opposed the application, and it caused a counter-affidavit to be filed thereunto on the 10th of February 2022.

 Thereafter, the Appellant apparently realized that the three-months period it could appeal against the said judgment of Federal High Court as of right if granted the leave to appeal as an interested party by the lower Court expired on the 17th of May 2021, and that he needed to seek for and obtain the trinity prayers, that is, extension of time to seek leave to appeal, leave to appeal and extension of time to appeal, in order to be able to successfully appeal against the judgment. Acting upon this realization, the Appellant filed another motion on notice on the 23rd of March 2022 incorporating the prayers for leave to appeal as an interested party and the trinity prayers to appeal against the judgment of the Federal High Court. The Appellant on the same 22nd of March, 2022 also filed a notice of withdrawal of the earlier motion of 12th March 2021, with the intention of replacing the motion with the new motion filed.

 When the applications came up before the lower Court on the 24th of March 2022, Counsel to the Respondents apparently contested the order to be made by the lower court on the Appellant’s notice of withdrawal of its earlier motion, and consequence on which the lower Court ordered the parties to file written addresses of arguments thereon. The parties complied with the order for written addresses, and they relied upon and adopted their respective addresses before the lower Court. The lower court delivered a ruling on the 2nd of August 2022, wherein it acknowledged the inalienable right of the appellant to withdraw its earlier motion, but it proceeded to equate the motion with an appeal, and it considered the notice to withdraw the motion under the provisions of Order 11 of the Court of Appeal Rules, 2021 and found that since the Respondents had filed counter-affidavits to the motion, issues had been joined thereon, and that the proper order to make was one of dismissal. The lower Court proceeded therefrom to dismiss the motion of the Appellant filed on the 12th March 2021, and it thereby effectively foreclosed the consideration of the new motion filed by the Appellant. This appeal is  against the order of dismissal of the motion.

 Now, what is evident from the above narration is that the basis for the withdrawal of the motion of 12th of March 2021 by the Appellant was that post 17th of May 2021, the lower Court ceased to have the power and jurisdiction to grant it leave to appeal as of right as an interested party against the judgment of the Federal High Court delivered on 17th February 2021, as the statutory three-months period for it to so appeal as of right had elapsed. The lower Court could only grant it the trinity prayers to so appeal after that date, and that as such, the application had become incompetent, and the Appellant sought to replace it with a competent application. The law as established by a long line of case law authorities by this Court is that the proper order to make where a motion on an action is incompetent and/or not properly constituted is striking out and not dismissal – see for example the cases of Abiegbe vs Ugbodume (1973) 1 SC 103, Oloriode vs Oyebi (1984) SCNR, 390, Adesokan vs Adetunji (1994) 6 SCNJ 123, Gombe vs P.W. Nig. (1995) 6 NWLR (pt.402) 402, Kogi State vs Yakubu (2001) 5 NSCQR 598 at 607, Obi vs INEC (2007) 7 SC, 268, Optimum Construction & Property Development Ltd vs Ake Shareholdings  Limited (2021) LPELR 56229(SC), Union Bank of Nigeria Plc vs Petrol Union Oil & Gas Limited (2021) LPELR 56671 (SC), Olayemi vs Federal Housing Authority (2022) LPELR 557579 (SC), Ashaka vs Nwachukwu (2024) LPELR 61796 (SC). It is not appropriate to dismiss such a motion or appeal, as a dismissal suggests that the motion or the appeal was determined on merits or finally.

 The lower Court ran foul of this established position of the law when it dismissed the 12th of March 2021 motion of the Appellant instead of striking it out. It is for this reason and the fuller exposition of the law in the lead judgment that I too see merit in the appeal and I allow same. I hereby set aside the order of dismissal of the motion of the Appellant filed on the 12th of March 2021 made by the lower Court in its ruling of 2nd of August 2022 delivered in Appeal No: CA/LAG/CV/ROA/236m/2021 and I enter an order of striking out,  in its stead. I abide the order on costs in the lead judgment.

HABEEB ADEWALE OLUMUYIWA ABIRU

JUSTICE, SUPREME COURT

 APPEARANCES:

Abayomi Adeniran Esq for the Appellant

Ebun-Olu Adegboruwa, SAN, with O. Adesioye for the 1st Respondent

O.A. Akanbi for the 2nd Respondent.