➥ CASE SUMMARY OF:
Trans Nigeria Assurance Company Limited V. Attorney General Of Oyo State & Anor. (20 Jun 2018, CA/I/532/2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Set aside of ruling;
Apply to be party before filing application.
➥ CASE FACT/HISTORY
The Appellant by a Petition filed in the Court below in Suit No. FHC/IB/CS/5/13 dated 11/01/13 and a verifying Affidavit of the same date sought the following Orders and reliefs: 1. That the Trans Nigeria Assurance Company Limited be wound up by this Honourable Court under the provisions of the Companies and Allied Matters Act 1990 and Insurance Act 2003. 2. That the appointment of Gbenga Adekanmbi as Liquidator for the purpose of the Winding up of the Company be confirmed by this Honourable Court. 3. And for such other orders as may be made in the circumstances.
The lower Court upon being moved pursuant to the Application of the Petitioner (now Appellant) by way of a Motion Ex parte dated 29/01/13 granted an order that the Appellant should advertise the Petition. The Petition was advertised by the Petitioner (now Appellant) and an Affidavit of compliance with the order was filed by the Appellant. The Appellant also filed a Statement pursuant to Rule 24(2) of the Companies Winding up Rules, 2001, made pursuant to the Companies and Allied matters Act, Cap. C20 Laws of the Federation of Nigeria, 2004, dated the 28th day of March 2013, stating that no notice of intention to appear has been given by any person either in support or in opposition to the Petitioners (Appellants) Petition. The Lower Court thereafter set down the Petition for hearing and after hearing the Petition of the Appellant on the 24/06/13 granted all the reliefs sought by the Appellant in the petition. The Respondents (who were not parties to the Petition) for Winding up brought an Application by way of a Motion on Notice pursuant to Order 56, Rule 8, Federal High Court (Civil Procedure) Rules 2009 seeking an Order to set aside ex debito justitiae the Judgment dated 24/06/13 delivered by the Court below.
In opposition to the application, the Appellant filed a counter affidavit of 9 paragraphs where it emphasised its publication of advertisement of the winding up in Punch and Tribune newspapers and gazetted in the Federal Government Gazette. It did not categorically deny many of the paragraphs of the affidavit in support including paragraphs 3, 4, 6, 7, 8, 9, 10, 11 (i-vii) which established that material facts were not disclosed at the hearing of Suit No FHC/IB/CS/5/13.
The Lower Court, Coram Ayo-Emmanuel J. heard the Application and in a considered Ruling delivered on 09/07/14 granted the Application and set aside the Judgment of the lower Court delivered on 24/06/13. The Appellant being dissatisfied with the Ruling filed a Notice of Appeal on 02/10/14.
➥ ISSUE(S)
I. Whether having regard to the fact that the Respondents (Applicant in the Lower Court) are not Parties to the suit and the Judgment of the Lower Court delivered on 24th day of June, 2013, the Appellants Application to set aside the Judgment is competent and the lower Court has jurisdiction to entertain it?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[RESPONDENT CANNOT SET ASIDE A JUDGEMENT IT WAS NOT A PARTY TO
‘Can the Respondents in the circumstances jump into the affray to apply for the setting aside of a decision of a Court in respect of which they were not parties? The law is indeed trite that only parties to a suit can make applications in the suit. A non-party seeking to make an application in a suit must first apply to be joined as a party in the suit. In the case of Philip Morris Intl Mgmt SA v. A.G. Ogun State and Ors. (2017) LPELR-42181(CA) decided by this Court, I had observed thus: “The truth is that the Appellant is a non party in the suit. Order 13 Ogun State High Court (Civil Procedure) Rules 2008 deal with parties generally. From these provisions it is clear that only parties to the suit can make applications to the Court. A non party to qualify must first apply to be joined as a party. Herein lay the predicament of the Appellant. It did not apply to be joined before making the application that the 5th Defendants name be struck out. The Appellant was an interloper and the learned trial judge was right to have held that the Appellant lacked the legal standing to seek to strike out the name of the 5th Defendant from the suit.” To give it the competence to file this appeal, the appellant had come to this Court by motion on notice praying for an order granting it leave to appeal as an interested party. The appellant knew he was not a party at the lower Court. The only way to get this Court to hear him was by that application.’
‘Why then did the Appellant imagine that without such similar application giving him the right to be heard at the lower Court, it could just jump in and ask the Court to strike out the name of the 5th Defendant? Okoronkwo, JCA in the above appeal observed: “Being a non-party in the suit at the High Court, Order 13 of the Ogun State High Court (Civil Procedure) Rules 2008 precludes the appellant from making any application to it. Besides this statutory provision, there is also the Constitution (1999) which by its provision in Section 243(a) confines right of appeal to a Party to the action only (save by leave of the Court of Appeal or the High Court at the instance of any party having an interest in the subject matter) it provides thus: ”Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this Constitution shall be (a) Exercisable in the case of civil proceedings at the instance of a party thereto/or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter…In other words, not being a party to the suit, appellant herein could not have made any application to the lower Court. Under Section 243(a) “any other person having an interest in the matter” refers to the substantive matter in the suit before the lower Court and not merely collateral interest.”’
‘What the Respondents did in their application is as stated above akin to a party making an application in an appeal without first seeking leave of the Court to appeal as an interested party. See J.A. Odutola Property Devt and Inv. Co. Ltd and Ors. v. Sowande and Ors (2016) LPELR-41465(CA) where Ogakwu, JCA observed: “Let me iterate that the conception, execution and approach of the Appellants to this matter is arcane. They are not parties to the action at the lower Court. However, they perceive that certain averments made in the action affect them. Rather than apply as interveners to be joined in the action so that they can be heard in the hearing and determination of the matter in respect of the said averments that affect them, they chose to bring an application for certain orders to be made against parties in proceedings in which they themselves are not parties. This is as strange as it can get in practice and procedure. It is indeed stranger than fiction. Fully appreciating this, the lower Court stated as follows on pages 274-275 of the records: “Now from the arguments of learned counsel in their respective address, the paramount issue to determine in this application is its competence. Can persons who are not parties to a suit apply for or obtain orders against parties in the suit? It is very pertinent that these applicants have not sought for any order on themselves. The submissions of learned counsel for the claimants are unassailable. It is not known to law for a non-party to seek orders against the pleadings of a party in a suit. Very simply do the applicants have the locus standi to apply for an amendment or striking out of the pleadings of the claimant? How can they when it is even unheard of for a party to apply for the amendment of the pleadings of his opponent. With much respect to learned Silk he has misconceived the constitutional guarantee of fair hearing. Fair hearing is only guaranteed to parties to a suit not an interloper or a busybody…The only application open to the party whose rights are affected by a suit is one for joinder. Or where orders are made against a non-party the party can apply to set them aside. Since the applicants have taken umbrage with the right to have their civil rights and obligations determined, they must apply for the determination according to the law of the land. They must join the suit to be able to do so. It is trite that any person interested in the subject matter of a suit may apply to join a suit at any stage even on appeal as an interested person.”’
‘The Respondents in this appeal tried to justify their action by the argument that they had instituted an earlier suit FHC/IB/CS/55/2012 challenging the appointment of Mr. Gbenga Adekanmbi as liquidator and that the subsequent suit FHC/IB/CS/5/2013 was an abuse of Court process and that the lower Court had the jurisdiction to prevent abuse of its process and to over-rule itself ex debito justiciae as it rightly did once its attention was called to the illegality of its action or the fact that its decision was taken without jurisdiction. This is not an answer to the question whether the attention of the Court to the illegality can be called by the Respondents who were not parties in the suit and who had not applied to be joined in the suit. With all due respect to the Respondents, the Rules do not permit such course of action. It is like putting the cart before the horse or jumping the gun. By Order 13 Rule 16(3) of the Oyo State High Court (Civil Procedure) Rules the judge may order that the names of any party who ought to have been joined or whose presence before the Court is necessary to effectually and completely adjudicate upon and settle the questions involved in the proceedings be added. The problem here however is that the proceedings had been concluded and judgment delivered by the lower Court. This raises the question whether the Respondents ought not to have gone by way of appeal with an application for leave to appeal as an interested party? However if this was a case where the lower Court had jurisdiction to set aside its judgment, it could still within its inherent jurisdiction grant the Respondents leave to join as interested parties to enable them file the necessary application. The point is that no such leave was sought and obtained by the Respondents. They were mere interlopers and the lower Court ought not to have heard their application. On this ground alone, this appeal succeeds.’]
.
.
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✓ DECISION:
‘This appeal has merit. It is hereby allowed. The decision of N. Ayo-Emmanuel J. is set aside. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ PROPER PERSON TO BRING AN ACTION FOR THE WINDING UP OF AN INSURANCE COMPANY
I agree with learned counsel for the Appellant that the combined effect of the provisions is that the proper person to bring the Petition for the Winding Up of an Insurance Company whose certificate has been cancelled is the National Insurance Commission (the Commission) or a Receiver appointed by the Commission. The Receiver, upon his appointment, assumes complete control of such insurance Company and its assets. Generally, in the event of any conflict in the provisions of the CAMA or other enactment and the Insurance Act, the provisions of the Insurance Act shall prevail to the extent of such inconsistency. This is provided for in Section 100 of the Insurance Act. The requirement of the words in liquidation after the name of the Company is not a requirement of the law in the instant case. The Respondents Preliminary Objection is lacking in merit. It is hereby overruled. — C.E. Iyizoba JCA.
⦿ WHO IS A PARTY TO AN ACTION
In Fawehinmi v. N.B.A (No. 1) (1989) 2 NWLR (Pt. 105) 494 @ 550-551 Oputa, JSC observed: “In Blacks Law Dictionary 5th edition p. 1010:- A party to an action is a person whose name is designated on record as Plaintiff or Defendant, the term party refers to that person(s) by or against whom a legal suit is sought. Whether natural or legal persons but all others who may be affected by the suit indirectly or consequentially are persons interested and not parties.” See also Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342 @ 382 C-G, 383 C-D, G-A, 420 D-F and Akindele v. Abiodun (2009) 11 NWLR (Pt. 1152) 356 @ 380-382 cited by learned counsel for the Appellant. — C.E. Iyizoba JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Chinwe Eugenia Iyizoba, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Femi Atteh Esq.
⦿ FOR THE RESPONDENT(S)
Oluseun Abimbola Esq.,
Adegboyega Salawu,
Surajudeen Ajibola Basiru,
Jide Obisakin,
K. Adekilekun Tijani.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 46(1) of the National Insurance Commission Act Cap. N53 Laws of the Federation of Nigeria, 2004 (NAICOM ACT);
Section 32 and 82 of the Insurance Act, Cap 117 Laws of the Federation of Nigeria 2004.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
