In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 12th day of December, 2025
Before Their Lordships
Helen Moronkeji Ogunwumiju
Adamu Jauro
Jummai Hannatu Sankey
Obande Festus Ogbuinya
Abubakar Sadiq Umar
Justices, Supreme Court
SC/212/2019
Between
BINEZ HOTELS LIMITED APPELLANT
And
1. BUREAU OF PUBLIC ENTERPRISES
2. FUTURE VIEW SECURITIES LIMITED RESPONDENTS RESPONDENTS
(Lead Judgement delivered by Honourable Jummai Hannatu Sankey, JSC)
Facts
The Appellant through its agent – the 2nd Respondent, agreed to purchase 13,000,000 shares held by the Federal Government of Nigera Nigercem Plc, from the 1st Respondent for the sum of N7,020,000.00. The Appellant issued a cheque for the amount in favour of the 1st Respondent, and the 1st Respondent conveyed the approval of the National Council on Privatisation to the Appellant. However, the 1st Respondent cancelled the sale midway before executing the Share Transfer Forms, and returned the un-cashed cheque to the Appellant. The Appellant subsequently discovered that, the said shares had been sold to the Ebonyi State Government.
Aggrieved, the Appellant filed an action against the Respondents and the Nigerian Stock Exchange at the Federal High Court, Lagos State, by an Amended Originating Summons. The Appellant sought the determination of the questions whether the Appellant is not entitled to the beneficial ownership of the shares, after the initial acceptance of payment by the 1st Respondent and the approval of the sale by the National Council on Privatisation, and whether it is not entitled to the whole proceeds of any purported sale to a third party, or to have the said sale set aside. The Appellant therefore, sought a declaration that it is entitled to the beneficial ownership of the said shares.
The trial court delivered its judgement in which it answered the Appellant’s questions in the negative, and dismissed the Appellant’s claims. Dissatisfied, the Appellant appealed to the Court of Appeal. However, the Court of Appeal upheld the decision of the trial court and dismissed the appeal.
Aggrieved, the Appellant appealed to the Supreme Court. The parties filed and exchanged their respective briefs of argument. The 1st Respondent in its Brief of Argument, raised a preliminary objection to the hearing of the appeal.
Arguments on the Preliminary Objection
Counsel for the 1st Respondent submitted that the appeal is incompetent, because the Appellant unilaterally removed the Nigeria Stock Exchange which was the 2nd Defendant at the trial court as a party in the appeal, without first seeking and obtaining the leave of court.
Counsel argued that the Appellant’s failure to maintain the parties from the trial court renders both the appeal at the Court of Appeal and the Supreme Court incompetent, and strips the Apex Court of jurisdiction to decide the instant appeal. He relied on Order 4 Rule 6 of the Supreme Court Rules 2024, Order 16 Rules 1-4 of the Court of Appeal Rules, 2021 and the case of APEH v PDP (2018) 1-2 SC (PT. IV), and urged the Court to strike out the appeal.
In response, Counsel for the Appellant submitted that the 1st Respondent ought to have filed a cross-appeal on the issue it raised, and having failed to do so, it was precluded from raising it before the court. Counsel explained that the point had been made at the Court of Appeal that it was a mistake of the Appellant’s Counsel in failing to ensure that the Record of Appeal properly reflected the oral application for the withdrawal of the case against the 2nd Defendant at the trial court, against whom no claim was made in the suit and who was never a necessary party. Counsel argued that the 2nd Defendant’s initial inclusion was a misjoinder and its subsequent absence is a non-joinder, neither of which should defeat the proceedings.
Resolution of the Preliminary Objection
The Apex Court held that the character of a case, including the parties, must be constant from the proceedings at the trial court right up to the ladder of appeals; and the only permissible alteration of parties, is where the leave of court to effect same has been duly sought and obtained. The Court held that where such requisite leave is not sought and obtained, the court will be bereft of jurisdiction to entertain the matter. The Supreme Court held further that the unilateral removal of a party from an appeal by another party, even if that party never actively participated in the suit at the trial court and even when the matter appears solvable without that party, is a fundamental procedural irregularity that is of grave significance. The Apex Court held additionally that, in Nigerian appellate jurisdiction, it is firmly established that once a party is properly joined to a suit at the trial court, he remains a party throughout the trial and is unchanged even on appeal, unless and until he is formally removed by an order of either the appellant court or the court concerned.
The Court held that it had painstakingly examined the record of appeal before it, but was unable to find any record of any oral application for the striking out of the name of the 2nd Respondent from the case before the trial court. The Court held that as a matter of fact, an application for the removal or striking out of a party to a suit that will consequently lead to the amendment of the processes before the court, can only be brought by way of a motion on notice. For these reasons, the Apex Court upheld the 1st Respondent’s preliminary objection, found the appeal incompetent and struck it out.
However, notwithstanding the peremptory determination of the appeal based on the upholding of the preliminary objection, the Apex Court decided to deliberate on the merit of the substance of the appeal, in the interest of a final closure for the parties. The Court cited ZENITH BANK PLC v JOHN & ORS 92015) LPELR-24315 (SC) in aid of its resolve in this regard, and proceeded to consider the issues raised by the Appellant.
