(2018) LPELR-44754(CA)

Transcription

1 ECOBANK (NIG) PLC v. IDOGHO & ORS CITATION: PHILOMENA MBUA EKPE In the Court of Appeal In the Benin Judicial Division Holden at Benin ON THURSDAY, 14TH JUNE, 2018 Suit No: CA/B/30/2015 Before Their Lordships: MOORE ASEIMO ABRAHAM ADUMEIN MUDASHIRU NASIRU ONIYANGI Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal ECOBANK (NIG) PLC - Appellant(s) And 1. CHIEF GODWIN IDOGHO 2. GODDY IDOGS (NIG) LTD 3. NIGERIA DEPOSIT INSURANCE CORPORATION RATIO DECIDENDI - Respondent(s)

2 1. ACTION - NECESSARY PARTY(IES): Who is a necessary party "The law is settled that a necessary party is one whose presence is required for the effective and efficient determination of a suit. A necessary party must be one against whom the Plaintiff has a claim."per EKPE, J.C.A. (P. 24, Paras. C-D) - read in context 2. ACTION - PARTY(IES) TO AN ACTION: Reason for making a person a party to an action "It is however necessary to state that under the law, one reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action. See the following cases: OSHO V. FOREIGN FINANCE CORP. (1991) 14 NWLR (Pt.184) 188 and EDEWOR V. PROPERTY DEV. CO. NIG. LTD (2003) LPELR "Per EKPE, J.C.A. (P. 24, Paras. D-F) - read in context

3 3. EVIDENCE - EVALUATION OF EVIDENCE: Powers of a trial Court in evaluation of evidence "the law is well settled that a judge is entitled to evaluate all the evidence including oral and documentary evidence. It is within the purview of the judge to construe a document tendered in the course of trial, in order to add probative value to it. See A.G. ENUGU STATE V. AVOP PLC (1995) 6 NWLR (PT. 399) 90; LAWAL V. G.B. OLLIVANT (1972) 3 SC 124." Per EKPE, J.C.A. (Pp , Paras. F-B) - read in context 4. INTERPRETATION OF DOCUMENT - CONSTRUCTION OF DOCUMENT(S)/INSTRUMENT(S): How to interpret documentary evidence "In SUMMIT FINANCE CO. LTD V. IRON BABA & SONS LTD (2013) 17 NWLR 121 PARA G-H, it was held thus "in the construction of documents, the material words are to be given their natural and grammatical meaning and import. The Court is not to look merely at the document; it must discover what the real transaction is"." Per EKPE, J.C.A. (P. 19, Paras. B-D) - read in context

4 5. LEGAL PRACTITIONER - STAMP/SEAL: Effect of affixing proof of payment of NBA stamp and seal where stamp and seal are not available "I have decided to take together in one fell swoop the resolution of all the issues since they are all related and intertwined. I shall however commence by first resolving the point raised by the Appellant that there is no valid Respondent's brief. On this point, the authority of the case of SENATOR BELLO SARKIN YAKI'S (2015) LPELR cited by the Appellant is to the effect that a Court process without a stamp is voidable but not void. In the instant appeal, learned counsel for the Respondent has affixed the receipt of payment for the stamp which shows that counsel has played his part by applying for the stamp. If for any reason there is a delay in delivering the stamp to him, it will be unjust to punish him for the laxity of those whose duty it is to produce the stamp timeously. I am therefore of the view that the evidence of payment, exemplified by the receipt suffices and the brief is therefore adjudged proper before the Court."Per EKPE, J.C.A. (P. 16, Paras. A- E) - read in context

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6 PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the judgment of Hon. Justice C.E. Achilefu of the High Court of Delta State, sitting at High Court No 3 Warri, delivered on the 10th day of June, The Appellant who was the 1st Defendant was dissatisfied with the said judgment and filed a Notice of Appeal on 4/8/2014 raising the following grounds of appeal. The grounds of Appeal shorn of their particulars are reproduced below: GROUND ONE: The learned trial judge erred in law when he held that the Appellant breached the duty of care it owed to the 1st and 2nd Respondent. GROUND TWO: The learned trial judge misdirected himself as to facts when he held that the Appellant agreed to the 1st and 2nd Respondents assertion that the sum of N6,809, (Six Million, Eight Hundred and Nine Thousand, Two Hundred and Thirty Three Naira, Eighty Eight kobo was paid by NDIC into the 1st and 2nd Respondent s account. GROUND THREE: The learned trial judge erred in law when he held that the Appellant was liable to the 1st and 2nd Respondents in the sum of N2, 614,726 (Two 1

7 Million, Six Hundred and Fourteen Thousand, Seven Hundred and Twenty Six Naira) only being credit balance in the account as at 01/07/2003. GROUND FOUR: The learned trial judge erred in law when he held that the Appellant was liable to the 1st and 2nd Respondents for negligence in dealing with their account. GROUND FIVE: The learned trial judge erred in law when he held that the Appellant took over the defunct Hallmark Bank thereby taking over its asset and liabilities. GROUND SIX: The learned trial judge erred in law when he held that NDIC was not a necessary party having transferred the rights of the 1st and 2nd Respondents to the Appellant. GROUND SEVEN: The judge erred in law when His Lordship held that no cause of action can be brought against NDIC since Ecobank having taken over the defunct bank, Ecobank has stepped into the shoes of the defunct bank to be saddled with the assets and liable (sic) of the defunct bank, NDIC is therefore not a necessary party to this suit. GROUND EIGHT: The Court misapplied the authority of Crown Flour 2

8 Mills Ltd. V. Olokun (2008) when it wrongly relied on the Receivership principle cited in the authority, when liquidation and not receivership was in issue at the trial Court. GROUND NINE: The judge wrongly applied the law when it held that it is the law that an agent or any one in fiduciary position is liable to render account and that it is my view that Ecobank is in a fiduciary position towards Hallmark Bank, thereby implying that the Appellant was an agent to Hallmark Bank. From these nine grounds of Appeal, the Appellant distilled four issues for determination as follows: a) Whether the trial Court was right to have entered judgment in favour of the 1st and 2nd Respondents by placing reliance on evidence that was not before the Court at trial. b) Whether the trial Court was right to have held that the Appellant breached the duty of care it owed the 1st and 2nd Respondents from the pleadings and evidence adduced at the trial. c) Whether the trial Court was right to hold that the Appellant is liable to the 1st and 2nd Respondents for moneys which did not form part of the account the Appellant purchased from the 3rd Respondent. 3

9 d) Whether from the facts and circumstances of the case, the 3rd Respondent is not a necessary party. Respondent also raised the following issues for determination: a) Whether the trial Court was right to have entered judgment in favour of the 1st and 2nd Respondents. b) Whether the trial Court was right to have held that the Appellant breached the duty of care it owed the 1st and 2nd Respondents. c) Whether the trial Court was right to hold that the Appellant is liable to the 1st & 2nd Respondents The 3rd Respondent on his part distilled a sole issue for determination thus: Whether the trial Court was right to have held that the 3rd Respondent is not a necessary party in the suit and therefore not liable to the 1st and 2nd Respondents claim. Having considered all the issues raised by the parties in this appeal, I have decided to adopt issues a and b of the Appellant s issues for determination and issue a as distilled by the 3rd Respondent to be used in this discourse as they appear more apt and all embracing. 4

10 ISSUE ONE 1) Whether the trial Court was right to have entered judgment in favour of the 1st and 2nd Respondents by placing reliance on evidence that was not before the Court at trial. ISSUE TWO 2) Whether the trial Court was right to have held that the Appellant breached the duty of care it owed the 1st and 2nd Respondents from the pleadings and evidence adduced at the trial. ISSUE THREE 3) Whether the trial Court was right to have held that the 3rd Respondent is not a necessary party in the suit and therefore not liable to the 1st and 2nd Respondents claim. The facts giving rise to this appeal are that the 1st and 2nd Respondents who were Claimants at the Court below were current account holders at Hallmark Bank Plc, now defunct. The Niger Delta Development Commission awarded a contract to the 2nd Respondent, and requested the 2nd Respondent to provide a bank guarantee. The then Hallmark Bank Plc, now the 3rd Respondent provided the Bank guarantee wherein it charged the 2nd Respondent 1% of the mobilization fee for providing the Bank Guarantee and another 3% as Management/Monitoring fee.

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12 On or about 5th February, 2002 the NDDC paid the 2nd Respondent the sum of N7,230, (Seven Million, Two Hundred and Thirty Thousand, Seven Hundred and Seventy-Two Thousand Naira, Fifty kobo) through the then Hallmark Bank Plc now the 3rd Respondent, but the bank failed to credit the account of the 2nd Respondent. The bank kept this money in an escrow account which was not accessible to the 1st and 2nd Respondents, rather the bank treated all withdrawals made by the 1st and 2nd Respondents as overdraft and accordingly charged overdraft interests on the account of the 1st and 2nd Respondents. When the 1st and 2nd Respondents discovered this development, they sued Hallmark Bank Ltd via a writ of Summons on 19/11/2003 claiming the following reliefs: A. The sum of N2, 614,726 being credit balance on the account of the plaintiff as at 01/07/2003. B. N250, interests due to the plaintiff on credit balance on the account from 7th March, 2002 to 1st July, 2003 and thereafter the interest continue on the current account until the judgment is delivered (sic). C. The sum of N10, 000, being general damages suffered by the Plaintiff as a result of the action of sending 6

13 incorrect statements of account to the plaintiffs, charging unwarranted interests on the Plaintiffs account and portraying the plaintiffs as big debtors in the eyes of the public even though the plaintiffs have enough credit in their account D. Any other relief(s) as this Honourable Court may deem fit to make in the circumstance. During the pendency of the suit, Hallmark Bank went into liquidation, which necessitated the joining of Nigeria Deposit Insurance Corporation as liquidator. The Appellant herein was later joined in the course of the suit, when it acquired Hallmark Bank Plc. At the Court below, the case of the 1st and 2nd Respondents as plaintiffs was that all the deductions as interest charges on the 2nd Respondent s account were illegal as the Bank deliberately refused to credit the account of the 2nd Respondent with the mobilization fee paid by NDDC. The 1st and 2nd Respondents further contended that having acquired the assets and liability of Hallmark Bank, the Appellant is liable for the illegal deductions. On its part, the Appellant as 1st Defendant at the Court below stressed that although it acquired the 2nd 7

14 Respondent s account with the defunct bank, its liabilities are limited to the sum contained in the purchase and Assumption Agreement. In essence, the Appellant at the Court below made heavy weather of the fact that it is only liable to the sum outstanding in the account of the 2nd Respondent as at the time it took/bought over the defunct Hallmark Bank Plc from the 3rd Respondent. It is imperative to state at this point that both parties relied heavily on the Purchase and Assumption Agreement which was tendered and admitted as Exhibit H. ISSUE ONE: Whether the trial Court was right to have entered judgment in favour of the 1st and 2nd Respondents by placing reliance on evidence that was not before the Court at trial. On this issue, learned senior counsel for the Appellant Dafe Akpedeye submitted that Courts are bound by the materials placed before them, and they are not allowed to go beyond or outside what is before them. Learned counsel for the Appellant cited KASIMU V. N.N.P.C. (2008) 3 NWLR (PT.1075) 585 PARAS F-G; P.587 Para C and contended that the Appellant did not acquire the defunct 8

15 bank under strict principles of law governing acquisition. That the instrument of acquisition was the Purchase and Assumption Agreement in which the assets and liabilities of the defunct bank assumed by the Appellant were clearly listed and stated as Exhibit A. Learned senior counsel then reproduced clause 2.10 of the agreement, and stated that what the Appellant acquired as related to the 2nd Respondent s account was the sum of N512.14K which is what is contained in the entry book attached and forming the purchase agreement. Learned senior counsel submitted further that the only credible evidence in ascertaining the extent of the Appellant s liability to the 1st and 2nd Respondents is the purchase agreement; that the Court was therefore wrong in relying on the evidence of the 2nd Respondent in holding that the Appellant purchased the entire assets and liabilities of the defunct bank and therefore liable to pay the contract sum of N2, 614,726 paid to 2nd Respondent by NDDC. Learned senior counsel cited EGHAREVBA V. OSAGIE (2009) 18 NWLR (PT.1173) 299 to buttress the point that oral testimony cannot defeat documentary evidence. 9

16 Summing up argument on this issue, learned senior counsel stated that the sum of N2, 614,726, liabilities of the defunct bank awarded against the Appellant in favour of the 1st and 2nd Respondents was not listed as part of the liabilities assumed by the Appellant under the purchase agreement. In response, learned counsel to the 1st and 2nd Respondents submitted that the trial Court relied on Clause 3.1 of the Purchase and Assumption Agreement and did not place reliance on evidence that was not before it as Appellant had contended. Learned counsel reproduced Clause 3.1 of the agreement and submitted that the subject of this suit was a liability claim; an encumbrance that affects the assets acquired by the Appellant. Counsel further submitted that the subject of this suit emanated from a transaction between the 2nd Respondent and the defunct Hallmark Bank Ltd acquired by the Appellant and as such, by Clause 2.8 of the agreement, it is related to or connected with the assumed deposits and acquired assets. Learned counsel stated that the case of EGHAREVBA V. OSAGIE (supra) cited by the Appellant is not applicable to the instant case. 10

17 In conclusion, counsel submitted that by Clause of the Purchase and Assumption Agreement, the Appellant cannot be heard to say that it did not purchase/acquire liabilities of the 2nd Respondent s acquired asset. ISSUE TWO: Whether the trial Court was right to have held that the Appellant breached the duty of care it owed the 1st and 2nd Respondents from the pleadings and evidence adduced at the trial. On this issue, learned senior counsel to the Appellant set the tone by citing AGBONMAGBE BANK LTD. V. CFAO (1966) 1 SCNLR 367 as to when a bank would be said to have failed in its duty of care. He submitted that the sum of N2, 614, which the 1st and 2nd Respondents claimed was the credit balance in the account of the 2nd Respondent as at 1/7/2003 was not part of the liabilities assumed by the Appellant under the Purchase and Assumption Agreement. Learned senior counsel referred to paragraph 2.1, Clause 2.8 and Clause 2.10 of the Purchase and Assumption Agreement to buttress this point. The learned senior counsel concluded argument on this issue by stating that the duty of care must flow from the responsibilities and obligations the Appellant presents 11

18 itself to owe its customers, and in the instant case, the Appellant s duty of care is limited to the sum of N which is the amount the Appellant assumed as regards the account of the 2nd Respondent. In response to this issue, learned counsel to the 1st and 2nd Respondents cited AGBANELO V. UNION BANK OF NIG. LTD. (2000) 4 S.C. (PT. 1) 242 and submitted that the Appellant being a bank, owes its customers a duty of care because of the contractual relationship creating a debtor/creditor and principal/agent relationship. Learned counsel submitted further that failure of a bank to credit money to an account when it ought to credit the money amounts to a breach of that fiduciary duty of care. Learned counsel further submitted that the contention of the Appellant that it was Hallmark Bank that breached the duty of care is absurd since the Appellant had acquired the assets and liabilities of the defunct bank. Counsel stated that failure to credit the account of the 2nd Respondent and treating its withdrawals as overdraft constitutes breach of duty of care. Learned counsel summed up argument on this issue by submitting that the Appellant acquired the 12

19 2nd Respondent s account, and the cause of action is related to and connected with the said account, as such, the Appellant is liable as all acts done by the defunct bank are assumed to have been done by the Appellant. ISSUE THREE: Whether the trial Court was right to have held that the 3rd Respondent is not a necessary party in the suit and therefore not liable to the 1st and 2nd Respondents claim. In arguing this issue, learned senior counsel to the Appellant regurgitated submissions made as regards issues one and two above. He then cited OLATUNDE V. OBAFEMI AWOLOWO UNIVERSITY (1998) 4 S.C. 91; U.B.N. V. OZIGI (1994) 3 NWLR (Pt. 333) 385 and submitted that when the words of a written contract are clear, they should be given their ordinary meaning. Counsel submitted that N2, 614,726.57, the judgment sum awarded to the 1st and 2nd Respondents does not form part of the account assumed by the Appellant. In reply learned Counsel to the 1st and 2nd Respondents submitted that this issue has been addressed by the argument on issues one and two. He contended that the cause of action in this suit emanated from the same 13

20 account of the 2nd Respondent which is assumed deposit and acquired asset by the Appellant and as such, it is definitely related to the assumed account. Coming to the argument of the 1st and 2nd Respondents in their brief that since the Appellant acquired the assets and liabilities of Hallmark Bank, including that of the 2nd Respondent, that the instant case is connected to that account, learned senior counsel submitted that the amount in question was not part of what was acquired by the Appellant as existence of the escrow account into which the money was transferred was not disclosed to the Appellant. Learned senior counsel stressed that the existence of the escrow account was only known to the 3rd Respondent on the one part and to the 1st and the 2nd Respondents on the other part; in other words it is only the Respondents that owe each other duties with respect to the escrow account. EBHOTA & ORS. V. PLATEAU INVESTMENT AND PROPERTY DEVELOPMENT CO. LTD. (2005) LPELR 988 was called in aid to contend that it is only parties to a contract that can be held liable for any liability arising from it. 14

21 Learned senior counsel referring to clauses 14.1 to of the Purchase and Assumption agreement contended that the Appellants bears no liabilities for assumed assets and liabilities. Learned senior counsel cited AFRICAN REINSURANCE CORPORATION V. FANTAYE (1986) 1 NWLR (PT.14) 113 to the effect that it is not the function of a Court to either make agreements for the parties or to change their agreements as made but to give effect to the terms of the contract. The Appellant filed a Reply Brief on 15/11/2017 to the 1st and 2nd Respondents Brief of Argument. In the said Reply Brief, learned senior counsel contended that there is no valid Respondent s brief before the Court as there is no stamp and seal affixed to the 1st and 2nd Respondents brief. Learned senior counsel cited Rule 10(1) and (2) of the Rules of Professional Conduct 2007, and SENATOR BELLO SARKIN YAKI VS SENATOR ATIKU ABUBAKAR BAGUDU & ORS (2015) LPELR in support of this contention. He further submitted that attaching a photocopy of teller for payment as the counsel for the 1st and 2nd Respondent has done is not sufficient proof that the counsel has applied for the NBA approved stamp. He urged that the brief of argument of 1st and 2nd Respondent be discountenanced. 15

22 OPINION I have decided to take together in one fell swoop the resolution of all the issues since they are all related and intertwined. I shall however commence by first resolving the point raised by the Appellant that there is no valid Respondent s brief. On this point, the authority of the case of SENATOR BELLO SARKIN YAKI S (2015) LPELR cited by the Appellant is to the effect that a Court process without a stamp is voidable but not void. In the instant appeal, learned counsel for the Respondent has affixed the receipt of payment for the stamp which shows that counsel has played his part by applying for the stamp. If for any reason there is a delay in delivering the stamp to him, it will be unjust to punish him for the laxity of those whose duty it is to produce the stamp timeously. I am therefore of the view that the evidence of payment, exemplified by the receipt suffices and the brief is therefore adjudged proper before the Court. On the main issues, which like I stated earlier are being taken together, the law is well settled that a judge is entitled to evaluate all the evidence including oral and 16

23 documentary evidence. It is within the purview of the judge to construe a document tendered in the course of trial, in order to add probative value to it. See A.G. ENUGU STATE V. AVOP PLC (1995) 6 NWLR (PT. 399) 90; LAWAL V. G.B. OLLIVANT (1972) 3 SC 124. It is also without doubt that the crux of this case is the Assumption and Purchase Agreement which was tendered and admitted as Exhibit H. In order to resolve the issues arising for determination in this appeal, there is need to take a careful and detailed look at Exhibit H excerpts of which are reproduced hereunder as follow: This Agreement is dated the day of..200 BETWEEN: 1. NIGERIA DEPOSIT INSURANCE CORPORATION, a body corporate established under the Nigeria Deposit Insurance Corporation Act 2006 having its principal place of business at Plot 447/448 Constitution Avenue, Central Business District, Abuja as Liquidator of HALLMARK BANK PLC (hereinafter called the Liquidator ) of the one part; 17

24 2. ECOBANK NIGERIA PLC, a public limited liability company incorporated and registered under the laws of Nigeria and licensed to carry on banking business with its principal place of business at Plot 21, Ahmadu Bello way, Victoria Island, Lagos (hereinafter called the ASSUMING BANK ) of the second part; and 3. CENTRAL BANK OF NIGERIA, a body corporate established under the Central Bank of Nigeria Act 2007 and having its principal place of business at Plot 33, Tafawa Balewa Way, Central Business District, Garki, Abuja (hereinafter referred to as CBN ) of the third part; 2.8 No other Liabilities being assumed Except for the assumed deposits, the Assuming Bank shall not assume or be bound by any duties, responsibilities, obligations or liabilities of any kind or nature, whether known or unknown, whether asserted or unasserted, whether accrued or unaccrued, whether contingent or otherwise, that are unrelated to, unconnected with or have no bearing whatsoever with the assumed Deposits and acquired assets. 3.1 Acquired Assets The Liquidator hereby sells, assigns, conveys and transfers to the Assuming Bank and the Assuming Bank purchases, 18

25 acquires and accepts from the Liquidator all rights, title and interest in the Assets of the Closed Bank as listed in Schedules 1 & 2 together with liabilities, obligations, liens, claims, charges, security interests and encumbrances of any character attaching to or affecting such assets (hereinafter referred to as the [ acquired assets ] In SUMMIT FINANCE CO. LTD V. IRON BABA & SONS LTD (2013) 17 NWLR 121 PARA G-H, it was held thus in the construction of documents, the material words are to be given their natural and grammatical meaning and import. The Court is not to look merely at the document; it must discover what the real transaction is. To this effect, there is need to ascertain what the transaction between the Appellant and the 3rd Respondent is as contained in Exhibit H in order to determine who amongst them bears liability to the 1st and 2nd Respondents. Without doubt, Exhibit H is a purchase agreement, wherein the 3rd Respondent, as a liquidator, transferred the assets and liabilities of the defunct Hallmark Bank to the Appellant. It is also not in doubt that the 1st and 2nd Respondents 19

26 were customers of the defunct bank, whose account was part of what was purchased by the Appellant. By virtue of the purchase therefore, the Appellant stepped into the shoes of the defunct Hallmark Bank and assumed its position. There is also no doubt that the Appellant bought over the liability which Hallmark Bank owed the 1st and 2nd Respondent by virtue of the transaction and by this, owes them a duty or care. In essence, assuming without conceding that the 3rd Respondent concealed this particular liability from the Appellant at the point of the transaction, it does not, in my view, exonerate the Appellant in any way. The Appellant can, if they so desire, proceed against the 3rd Respondent in a separate action for fraudulent concealment. With due respect to the learned senior counsel to the Appellant, I do not subscribe to his argument that the liability of the Appellant is limited to the sum of about five hundred thousand naira. The liability as regards the account cannot be separated. In essence, by a literal interpretation or construction of Exhibit H, the trial Court was right in holding the Appellant liable to the 1st and 2nd Respondents based on 20

27 the Purchase and Assumption Agreement (Exhibit H ). This finding to my mind determines the rest of the issues submitted for determination in this appeal. Learned counsel for the Appellant submitted that the 3rd Respondent is a necessary party to this suit considering the provisions of clauses 14, to of the Purchase and Assumption Agreement between the 3rd Respondent and the Appellant. Counsel contended that the 3rd Respondent bore the liability of the claim of the 1st and 2nd Respondents, as same was not part of what was assumed by the Appellant. Counsel referred to Clause 2.10 of the Purchase and Assumption Agreement and submitted that liabilities arising from the defunct bank not disclosed and assumed by the Appellant accrue to the 3rd Respondent. Further on this issue, learned counsel reproduced Clause 14 of the Purchase and Assumption Agreement and submitted that by virtue of this, and Exhibit G which is the order of Court winding up Hallmark Bank Plc under the provision of the Companies and Allied Matters Act 1990 as amended, the liability of the Appellant to the 1st and 2nd 21

28 Respondents is limited to the account listed and assumed by the Appellant; thus any liability outside that lies against the 3rd Respondent. In a brief of argument settled by A.E. Ogbeide-Ihama, Esq., dated 26/1/2017 but filed on 30/1/2017, the 3rd Respondent proposed a sole issue, to wit: Whether the trial Court was right to have held that the 3rd Respondent is not a necessary party in the suit and therefore not liable to the 1st and 2nd Respondents claim. Learned counsel submitted that the 3rd Respondent is not a necessary party to the suit by virtue of the fact that the 3rd Respondent had transferred the assets and liabilities of the defunct Hallmark Bank Plc to the Appellant. Counsel referred to Clauses 3.1 and 14.2 of the Purchase and Assumption Agreement and submitted that by a joint reading of these clauses the 1st and 2nd Respondents do not have any claim against the 3rd Respondent, hence the 3rd Respondent is not a necessary party to the suit. Counsel cited P.W.TRANSPORT (NIG.) LTD V. J.B. OLANDEEN INT. (2011) 195 LRCN 87 RATIO 3 and ABA V. C.R.S.P. LTD (2007) 28 W.R.N. 150 as to the definition of a necessary party and contended that since the 1st and 2nd 22

29 Respondents claim can be granted without the 3rd Respondent, the 3rd Respondent is not a necessary party. In a reply brief dated 14/2/2017, but filed on 22/2/2017, the Appellant relied on the issue raised by the 3rd Respondent in his brief but contended that the 3rd Respondent misapplied the provision of Clause 14.2 of the Assumption and Purchase Agreement. That the words Except as otherwise provided in this Agreement used in Clause 14.2 of the agreement create a condition precedent for the applicability of the entire Clause 14.2, which implies that Clause 14.2 is subject to other provisions of the Agreement. Learned senior counsel submitted further that the liability in issue in this matter was not disclosed to the Appellant, which brings it under Clause as liability not assumed by the Appellant. Learned senior counsel cited BABATUNDE & ANOR. V. BANK OF THE NORTH LTD & ORS (2011) LPELR 8249 (SC) to the effect that where the intention of the parties to a contract is clearly expressed in a document, the Court cannot go outside that document to give effect to the intention of the parties. 23

30 Learned senior counsel also cited OREDOLA OKEYA TRADING CO. & ANOR V. BANK OF CREDIT & COMMERCE INT L & ANOR (2014) LPELR (SC) as to the powers of NDIC Act. Counsel also referred to ROZEN INVEST. LTD V. NDIC (2007) ALL FWLR (Pt. 348) 82 and submitted that in that authority all the assets and liabilities of ACB were taken over by the assuming banks, unlike in the instant case where the liability is limited. Finally, learned senior counsel submitted that the 3rd Respondent is not only a necessary party to this action but liable to the 1st and 2nd Respondents. The law is settled that a necessary party is one whose presence is required for the effective and efficient determination of a suit. A necessary party must be one against whom the Plaintiff has a claim. It is however necessary to state that under the law, one reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action. See the following cases: OSHO V. FOREIGN FINANCE CORP. (1991) 14 NWLR (Pt.184) 188 and EDEWOR V. PROPERTY DEV. CO. NIG. LTD (2003) LPELR The question now is: do the 1st and 2nd Respondents have any claim against the Respondent. 24

31 In the instant appeal, it has been held that the 3rd Respondent had transferred the assets and liabilities of the defunct Hallmark Bank to the Appellant. Clause 3.1 and 14.2 of the Purchase and Assumption Agreement is very apt on this. In my view therefore, the 1st and 2nd Respondents do not have any claim against the 3rd Respondent, and this suit can and has been determined without the presence of the 3rd Respondent. It therefore follows that the 3rd Respondent is not a necessary party to this suit and this issue therefore should be resolved in favour of the 3rd Respondent. From the totality of all of the above summation, it is my ardent view as also held by the lower Court that this appeal is unmeritorious, it fails and is accordingly dismissed. In consequence, the judgment of the lower Court delivered by C.F. Achilefu J., on the 10th day of June, 2014 is upheld. Cost of N50,000 (Fifty thousand naira) is awarded in favour of the 1st and 2nd Respondents against the Appellant. Appeal dismissed. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, 25

32 Philomena Mbua Ekpe, JCA just delivered. I agree with the reasoning and conclusions of my brother and I also dismiss this appeal. I abide by all the orders made in the leading judgment. MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, PHILOMENA MBUA EKPE, JCA, permitted me to read in advance the judgment just delivered. I also dismiss the appeal for lacking in merit. I abide by the consequential orders made in the leading judgment including the order for cost in favour of the 1st and 2nd Respondent.

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34 Appearances: M.L. Aruna Esq. For Appellant(s) T.C. Williams Esq. with him, U.K. Gbenebitse Esq. for 1st and 2nd Respondent A.E. Ogbeide-Ihama Esq. with him, F.N. Owakwue Esq. for 3rd Respondent For Respondent(s)