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3PLR/2003/4  (CA)





GEORGE ADESOLA OGUNTADE, JCA (Presided and delivered the leading judgment)













Mr. Ayo Akintunde – For appellant.

Mr. A.S. Yaya With, Mr. A.O. Omotoriogun and  Mrs. I. Ogunniran –  For 1st and 2nd respondents.

Dr. H. Kusamotu,

Mrs. M.O. Akanle  – For 3rd respondent.



PRACTICE AND PROCEDURE – COURT – Decision made ‘per incuriam’ – effect of.

INTERPRETATION OF STATUTES – Section 23D, Nigeria Deposit Insurance Decree No. 5, 1997(ACT CAP. N102 L.F.N. 2004) – whether should take effect retrospectively.

INTERPRETATION OF STATUTE – Section 23(1) and (2) of the Nigeria Deposit Insurance Decree No.5 of 1999 – provisions of.

INTERPRETATION OF STATUTE – Section 23D, Nigeria Deposit Insurance Decree No. 5, 1997 – after the repeal of same whether there is any enactment currently in force to bar plaintiff from pursuing his case.

WORDS AND PHRASES – ‘ Per incuriam’ – meaning of.



GEORGE ADESOLA OGUNTADE, JCA (Delivering the leading judgment):The appellant was the plaintiff at the Lagos State High Court in suit No.LD/2693/94 and the respondent was the defendant. The appellant had been an employee of the 1st defendant. He resigned his appointment under the defendant by a notice in writing on 20/9/93 to expire on 20/12/93. On 7/4/94, the 1st defendant issued a query to the appellant. Following some developments from the said query, the appellant issued a writ of summons against the three defendants/respondents claiming some reliefs. (The parties are hereinafter referred to by the same description they bore before the lower court.)


The plaintiff filed a statement of claim. On 15/10/98, the 2nd and 3rd respondents brought an application that the plaintiff’s suit be struck out pursuant to section 23D of the N.D.I.C Decree. The application was heard by Atilade J. On 16/2/99, the learned Judge in her ruling granted the application and the plaintiff’s suit was struck out.


The plaintiff was dissatisfied with the ruling of the lower court and has brought this appeal. In the appellant’s brief filed, the issue for determination was identified as the following: –


“4.1.  Whether the provisions of Decree No.5 of 1997 or section 23D thereof which came into effect on the 10th day of January, 1997 has retrospective effect.


4.2.    Whether the ruling of Atilade J. delivered on the16th day of February, 1999 was decided “per incuriam” since section 23D of Decree No.39 of 1998 at the time the decision was given?


4.3     Whether compliance or otherwise with the provisions of section 417 of the Companies and Allied Matters Act (CAMA) was relevant in the interpretation of whether Decree No.5 of 1997 had a retrospective effect?”


The 1st and 2nd respondents filed a joint brief. The 3rd respondent filed its own brief. All the respondents adopted the issues as formulated by the appellant. I intend to consider together the three issues formulated by the appellant.


Now, section 23D of the Nigeria Deposit Insurance Decree (hereinafter described on NDIC Decree No.5 of 1997) provides: –


“(1)   As from the commencement of liquidation of an insured institution by the corporation and notwithstanding anything to the contrary in any law in force, no suit shall be instituted against an insured institution whose control has been assumed for purposes of liquidation by the corporation.


(2)     If any such proceedings is instituted in any court or tribunal against such institution, it shall abate, cease or be discontinued without further assurance other than this Decree.”


The undisputed facts, which are relevant, are these: –


(a)     The plaintiff’s suit was filed on 26th May 1994.


(b)     The banking licence of the 1st defendant was revoked on 8/9/94 and the 2nd defendant was appointed as a liquidator of the 1st with effect from the said 8/9/94.


(c)     Section 23D of N.D.I.C. (Amendment) Decree 1997 came into force on 10/1/97.


(d)     Section 23D of N.D.I.C. (Amendment) Decree 1997 was repealed on 22/12/98 vide Decree No.39 of 1998.


From the provisions of section 23D (1) of N.D.I.C. Decree No.5 of 1997 above, it is apparent that after the control of a bank has been assumed by 2nd defendant it is not permissible for anyone to bring a suit against the bank involved. The position here however is that the plaintiff’s suit had been filed before the control of 1st defendant was taken over by the 2nd defendant and even before section 23D of the N.D.I.C. (Amendment) Decree 1997 came into force. The important question to answer is – Did section 23D take effect on 10-1-97 retrospectively such that even suits, which had been filed before it came into force on 10/1/97 would abate? The lower court in the ruling appealed against at page 42 of the record of proceedings reasoned: –


“On a clear reading of Decree No.5, I am of the view that it has a retrospective effect and has overtaken Kotoye v. Saraki cited by learned counsel to the applicant which is therefore highly irrelevant to this case.


I therefore hold that this court no longer has the jurisdiction to entertain this suit and it abates forthwith.


I therefore strike out the entire suit for want of jurisdiction.”


The application by the 1st and 2nd respondents that plaintiff’s suit be struck out was filed on 15-10-98. It is not clear when it was argued as the court notes were not included in the record of proceedings upon which the appeal was heard. The ruling as stated earlier was delivered on 16-2-99. But between the hearing of the application and the delivery of the ruling on 16-2-99, Decree No.38 of 1998 had been promulgated. The said Decree No.39 of 1998 repealed section 23D of Decree No.5 of 1997. The lower court was therefore bound to give effect to the current legislation on 16-2-99 when her ruling was delivered. That current legislation was Decree No.39 of 1998.


However, it does not seem that the lower court was aware of the promulgation of Decree No.39 of 1998 as at the time the ruling was delivered. It would seem that it was not referred to by counsel before her or could not have been so referred to if it was not then in force. The result is that no reference was made to the Decree in the ruling appealed against.


The position now is that section 23D of Decree No.5 of 1997 having been repealed, there is no enactment currently in force which bars the plaintiff from pursuing his suit. It seems to me therefore an empty academic or hypothetical exercise considering whether or not the said enactment has a retrospective effect. It is also not necessary for me to consider the effect of section 417 of Companies and Allied Matters Act (CAMA) on the provision of section 23D of Decree No.5 of 1997.


I gratefully adopt the statements made by Evershed M.R. in Morelle Ltd. v. Wakeling (1995) 1 All ER 708 CA as to when a decision is made per incuriam. He said at page 718B.


“As a general rule the only cases in which decisions should be held to have been per incuriam are those decision given in forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: So that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. The definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment consistently with stare decisis rule which is an essential feature of our law, be in the language of Lord Greene, M.R., of the rarest occurrence.”


Similarly Karibi-White JSC in Rosssek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382 at 493 said concerning a decision made per incuriam: –


“A case is decided per incuriam where a statute or rule having a statutory effect or other binding authority which would have affected the decision had not been brought to the attention of the court. See African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt.6) 137.”


Clearly the decision of the lower court was made per incuriam. It ought not be allowed to stand.


This appeal succeeds. It is allowed. The suit of the plaintiff is restored to the cause list for determination on the merits; and the order striking out plaintiff’s suit is set aside. Appellant is entitled to costs which I fix at =N=5,000.00.




ABUBAKAR ABDUL-KADIR JEGA, JCA:I agree entirely with the leading judgment just delivered by my learned brother Oguntade, JCA. I adopt his reasoning and conclusion therein as mine. The appeal has merit, accordingly it succeeds. It is allowed. I abide by the consequential orders made in the lead judgment.


Cases referred to in the judgment

African Newspapers v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137.

Morelle Ltd. v. Wakeling (1995) 1 All ER 708.

Rosssek v. A.C.B. Ltd. (1993) 8 NWLR (Pt. 312) 382.


Statutes referred to in the judgment

Nigeria Deposit Insurance Decreee No. 5, 1997 s. 23D.

Decree No. 39 of 1998 s. 23D.

Companies and Allied Matters Act Cap. 59 Laws of the Federation of Nigeria 1990 s. 417.


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