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Rozen Invest. Ltd v. N.D.I.C.

ROZEN INVESTMENT LTD

CHIEF EVAN ENWEREM

V

NIGERIAN DEPOSIT INSURANCE CORPORATION: RECEIVER OF AFRICAN CONTINENTAL BANK PLC.

COURT OF APPEAL

( LAGOS DIVISION )

MOHAMMED L. GARBA JCA ( Presided and Read the Lead Judgment )


SOTONYE DENTON-WEST JCA

HUSSEIN MUKHTAR JCA

CA/L/48M/2002

MONDAY, 20TH NOVEMBER, 2006

ACTION - Applicable law at the commencement of an action - Change therein - Effect of on further proceedings

APPEAL - Discretionary powers of trial court - Exercise of - Attitude of appellate courts to

APPEAL - Ground of appeal - Distilling more than one issue for determination therefrom - Impropriety of

APPEAL - Ground of appeal - Where no issue is distilled from - Effect

APPEAL - Issues for determination - Duty of appellate court to determine all - When abates

BANKING LAW - Failed bank - Appointment of a receiver for - Whether amounts to loss of its juristic personality


BANKING LAW - Failed bank - Receiver appointed for - Statutory duty of - When terminates

COURT - Abuse of court process - Circumstances amounting to - Unlimited scope thereof

COURT - Abuse of court process - What constitutes

COURT - Federal High Court - Powers of to grant amendment of motions, Federal High Court Rules, 2003 Order 22, rules 1 and 2  considered

COURT - Technicality - Duty on court to avoid and do justice

DOCUMENT - Public documents - Documents which qualify as

ESTOPPEL - Estoppel per rem judicata - Operation of - Condition precedent to

ESTOPPEL - Estoppel per rem judicata - Operation of - Scope of

ESTOPPEL - Estoppel per rem judicata - Party for the purpose of Needlessness of being a named party

ESTOPPEL - Restyling of same parties to an action - Whether precludes court from estopping them from trying out same issues between them

EVIDENCE - Inadmissible evidence - Court and parties rendering admissible - Impropriety of

JURISDICTION - Determinant of

JUSTICE - Technicality - Duty on court to avoid and do justice

PRACTICE AND PROCEDURE - Applications - Different applications seeking to terminate and save an action - Attitude of court thereto

PRACTICE AND PROCEDURE - Irregular procedure adopted by court -  Party’s failure to object to - Legal consequences of

PRACTICE AND PROCEDURE - Need for party to succeed on strength of own case and not rely on weakness of adverse party WORDS AND PHRASES - ‘Abuse of court process’ - What constitutes

Issues:

1.              Whether the court below was right in granting an order to amend as sought in the motion of 21st May, 2001.

2.              Whether the court below should not have struck out the action before it as being an abuse of court process?

3.              Whether the respondent has locus standi to maintain or continue this action on behalf of ACB Plc.?

Facts:

Before the Failed Banks Tribunal, the respondent claimed recovery of some debt from the appellants. The claim was later transferred to the Federal High Court. The respondent applied for judgment in default of defence and the appellants filed a counter-affidavit challenging the application. They also filed an application praying the court to strike out the respondent’s action for want of locus standi and to strike out the name of the 2nd appellant for want of cause of action. The respondent also filed a counter-affidavit to oppose the application.

The respondent further applied to the court for amendment of the court record by deleting from it that there exists a judgment of the Lagos State High Court over the subject matter between the parties and an amendment of it’s affidavit in support of it’s motion.

The trial court dismissed the appellants’ application and granted the application of the respondent, in two different rulings. The appellants were dissatisfied with the two rulings and filed two notices of appeal which were consolidated in the Court of Appeal.