The Court of Appeal, Lagos Judicial Division has dismissed an appeal filed by Access bank Plc challenging the decision of Justice Nicholas Oweibo of the federal high court in Lagos, which refused to discharge the order of arrest made against a vessel MV OUK.
Justice Fatima Omoro Akinbami in her lead judgement held that Access bank’s unilateral alteration of the parties in the appeal without obtaining the prior leave of Appeal Court, nor the court below made the whole appeal incompetent.
The court held that the appeal in incompetent as the appellant has distorted the names of the parties without leave or order from the court.
The appellate court held that there was no order whatsoever granting leave to the Appellant to amend the original notice of appeal.
Other justices on the panel, Justice Obande Festus Ogbuinya (presiding) and Justice Frederick Oziakpono Oho consented to the judgement.
A firm, Mantrac Nigeria Limited had obtained an ex-parte warrant for the arrest of the vessel MV OUK dated December 7, 2018, for a claim for the sum of N124, 493,811.00.
Mantrac Nigeria Limited had in suit number FHC/L/CS/1931/2018 sued Vessel MV IBOM, Vessel MV OUK, Slok Nigeria Limited and Access Bank Plc.
Access Bank being dissatisfied with the judgment of the lower court delivered by Justice I. N Oweibo filed an appeal against the judgment on the 16th September 2019.
Access bank further prayed the court to allow the appeal and set aside the order of the lower court.
But, Justice Akinbami in her lead judgement held ‘’The Respondent rightly argued that the character of a suit should always remain the same right from the inception of the suit, and must be maintained throughout the pendency of the case, unless leave was sought and obtained from the court’’.
“The unilateral alteration of the parties in the suit, as pleaded at the court below, by the appellant as reflected in the Amended Notice of Appeal, renders the notice of appeal incompetent. With the removal of three Respondents, 2nd – 4th from the purported Amended Notice of Appeal, the said Notice of Appeal is liable to be struck out, and it is hereby struck out.”
“When there are improper parties on an originating process, the proper order to make is an order striking out the said process, the Notice of Appeal in appeal No: CA/LAG/CV/1140/2019 filed on the 16/9/2019 . See OLORIODE v. OYEBI (1984) 1 SCNLR 390. This is what Order 7, Rule 6 of the Court of Appeal Rules, 2016 is all about.”
Justice Akinbami further held that “a Court of law has the power and duty to put an end to any proceedings if, at any stage and by any means, it becomes manifest that the proceedings are incompetent. It can do this of its own initiative or at the behest of a party in the proceedings.”
The court held that by Order 7 Rule 8 of the extant Rules of the Court of Appeal, amendment of any process before this court is only by leave of court and not by any other means.
“This appeal as it is not properly constituted, because of the unilateral alterations of the parties to the suit from where the appeal emanates. The situation entitles me to strike out the appeal on the authority of Permanent Secretary Ministry of Works Kwara State v Balogun (1975) 5SC 57.”
“The reason rational for striking out suit not properly constituted is the general rule of law, anchored in the principle of audi alteram partem that no person is to be adversely affected by a judgment in an action to which he was not made a party, because of the injustice in deciding an issue against him in his absence.
“This appeal is incompetent, as the appellant has distorted the names of the parties without any leave or order from this court or the lower court. Consequently, I dismiss this appeal.”