Shareholders vs. a Bank Merger: How the Supreme Court Ended a Fight It Said Was Never Really About Jurisdiction — Abubakar & Anor. v. Providus Bank Ltd. & Ors. [2026] 13 NWLR (Pt. 2056) 87
Facts of the Case
Providus Bank Limited and Unity Bank Plc proposed a scheme of merger, part of the banking sector recapitalization framework approved by the Central Bank of Nigeria. Acting on an ex parte originating summons, the two banks obtained an order from the Federal High Court directing that the proposed scheme be presented to their shareholders and directors at specially convened meetings. Those meetings were held, and the majority of shareholders approved the merger. The banks then returned to court with a further ex parte application, this time seeking final judicial sanction of the scheme.
The appellants, who claimed to be members and interested stakeholders in Unity Bank, objected. They argued that serious irregularities had tainted the process — that the version of the merger scheme actually presented to shareholders materially differed from the one earlier approved by the court, and that the process was marred by fraud, forgery, perjury, and non-compliance with a prior court order requiring Central Bank approval before any sanction application could be entertained. They initially raised an oral jurisdictional objection, then, on the court's direction, filed a formal application seeking to be joined as interested parties and seeking the discontinuation and dissolution of the merger entirely.
Summary of Proceedings at the Federal High Court
At a hearing on 19 November 2025, counsel for the respondents asked the trial court to hear the appellants' application together with the banks' pending sanction application. The trial court agreed, directing that both be heard on the same day — but with the appellants' application argued and determined first. The appellants, believing this procedural sequencing could prejudice their jurisdictional challenge, appealed to the Court of Appeal.
Summary of Proceedings at the Court of Appeal
The Court of Appeal declined to engage with the merits. In a judgment delivered on 6 March 2026, it held that the appeal arose from the trial court's exercise of judicial discretion and substantially involved grounds of mixed law and fact — meaning it required prior leave of court, which the appellants hadn't obtained. It also found the appeal had been filed out of time. On both grounds, it dismissed the appeal, and went further: it suo motu ordered accelerated hearing of the substantive proceedings before the trial court, and awarded ₦5 million in costs against the appellants in favour of each of seven respondents.
The Arguments Before the Supreme Court
Still dissatisfied, the appellants took their fight to the Supreme Court, framing their case around four issues.
For the appellants, the core arguments were that their complaints of fraud and forgery raised genuine jurisdictional questions that entitled them to appeal as of right; that the Court of Appeal had miscalculated the time limit for filing their notice of appeal; that the Court of Appeal's own suo motu order for accelerated hearing had violated their right to fair hearing; and that, given all this, the ₦5 million costs award against them couldn't stand. Notably, in their own reply brief and notice of appeal, the appellants also asked the Supreme Court to invoke its powers under Section 22 of the Supreme Court Act — a provision allowing the Court to determine the real matter in controversy directly, as though the case had started before it.
For the respondents — ten in total, including the two banks, several capital and advisory firms, and regulatory bodies including the Corporate Affairs Commission, the SEC, and the Central Bank — the position, set out in largely overlapping briefs, was that the appeal was fundamentally incompetent: the appellants lacked locus standi as non-parties to the sanction proceedings, had failed to obtain leave for grounds that were plainly of mixed law and fact, hadn't complied with rules requiring costs to be deposited into an escrow account, and had filed at least one ground that didn't actually arise from the judgment being appealed. Separately, one of the banks asked the Supreme Court to go further still and use its own Section 22 powers to directly sanction the merger itself, rather than send the matter back down the court system.
How the Supreme Court Reasoned Through It
The Preliminary Objection Split the Court — But Not on the Merits
Before reaching the substance, the Court had to resolve the respondents' preliminary objection to the appeal's competence. Here the Court divided: by a 4–1 majority, it dismissed the preliminary objection, with Garba, J.S.C. dissenting and would have upheld the objections raised by three of the respondents. The majority's reasoning reflected a now-familiar principle: preliminary objections aimed at shutting a litigant out of court entirely shouldn't be sustained on doubtful or overly technical grounds where substantial justice can still be done. Since the appeal raised genuine questions about jurisdiction, fair hearing, and the scope of appellate intervention in merger proceedings, the majority felt these deserved to be heard on their merits rather than foreclosed at the threshold — even while acknowledging that some of the objections weren't entirely baseless.
Getting the Deadline Calculation Right
On the question of whether the appeal to the Court of Appeal was filed in time, the Court applied a precise statutory computation. Under the Interpretation Act, when a period of days is reckoned from an event, the day the event happens is excluded from the count. The trial court's ruling was delivered on 19 November 2025; excluding that date, the 14-day window under the Court of Appeal Act for appealing an interlocutory decision began running on 20 November and expired on 3 December — precisely the day the appellants filed their notice. The appeal was filed on time. The Court also noted that a more recent Supreme Court decision had already reaffirmed this method of computation, superseding the older authorities the Court of Appeal had relied on to reach the opposite conclusion.
"Jurisdiction" and "Fraud" in a Ground of Appeal Don't Automatically Make It a Question of Law
This was a more difficult call for the appellants. The Court explained that classifying a ground of appeal — as one of law, fact, or mixed law and fact — depends on its real substance, not on whichever label counsel chooses to attach to it. Words like "jurisdiction," "fraud," and "nullity" can be used to dress up what is, underneath, a factual or discretion-based complaint. Here, the true substance of the appellants' grounds wasn't a challenge to the trial court's basic legal competence to hear merger proceedings at all — it was a challenge to how the trial court exercised its discretion in scheduling two applications together, and whether alleged forgery and non-compliance had actually occurred. Resolving that required examining evidence, procedural events, and competing factual claims — squarely a matter of mixed law and fact, which needed leave the appellants never obtained.
Even so, the Court found that grounds 1 and 2 also raised genuine questions of law (jurisdiction and time computation), and ground 3 raised a live constitutional fair hearing question — meaning the appeal as a whole wasn't so fatally defective that it could be thrown out in limine. Since at least one competent ground existed, the appeal survived that particular hurdle.
A Court Managing Its Own Docket Isn't Automatically Denying Fair Hearing
On the claim that the Court of Appeal's suo motu order for accelerated hearing violated their right to fair hearing, the Court was unmoved. The constitutional guarantee of fair hearing is satisfied once parties are given a reasonable opportunity to present their case before an impartial tribunal — it isn't triggered simply because a party dislikes the procedural sequence a court adopts. The accelerated-hearing order didn't decide anyone's substantive rights or foreclose any issue; it was a case-management decision, well within the court's inherent power to keep proceedings moving, particularly given the real urgency around the recapitalization timeline. And critically, a party alleging denial of fair hearing must show actual resulting prejudice — a generalized grievance isn't enough. The appellants never demonstrated what specific harm the accelerated timeline caused them.
The Costs Award Stood
The Court reaffirmed that costs are discretionary, meant to compensate a successful party for trouble and expense reasonably incurred — not to punish. Appellate courts rarely interfere with a costs award unless the discretion was exercised on wrong principles or was plainly perverse. Partial success on one issue at the Supreme Court didn't retroactively undermine the Court of Appeal's earlier costs award, so it was left standing. Separately, the Court noted that the appellants had, since filing, actually complied with the rule requiring costs to be deposited into an escrow account — and since procedural rules exist to ensure orderly justice rather than to punish a party who corrects a default before the objection is even decided, that particular objection no longer had any ground to stand on.
Every Respondent Filing Its Own Nearly Identical Brief Was a Problem
The Court used the occasion to address something structural: ten respondents had each filed separate briefs that were, in substance, virtually indistinguishable. Supreme Court Rules require parties with identical or joint interests to file a single joint brief — separate briefs are only for parties whose interests genuinely diverge or conflict. The Court described this rule as a genuine, binding requirement rather than a mere suggestion: the word "shall" makes it mandatory, and its purpose is to prevent exactly the kind of repetitive, judicial-time-consuming duplication that had occurred here. While the Court didn't strike out the appeal over it, it declared it would only formally engage with the lead respondent's brief going forward, treating it as representative of the rest.
Taking the Case All the Way to a Final Answer — Section 22 in Action
This is where the ruling becomes genuinely unusual. Rather than resolving the procedural questions and sending the matter back down to the trial court to actually decide whether the merger should be sanctioned, the Supreme Court used its own statutory power under Section 22 of the Supreme Court Act to determine that question itself, directly.
The Court set out when this power is appropriately invoked: where all necessary material is already before the court; where remitting the case would simply add further delay; where the issue is substantial but capable of being finally resolved without another round in the lower courts; and where deciding it directly would avoid unnecessary multiplicity of proceedings. The Court found all of these conditions satisfied — the full record, including the merger scheme, shareholder resolutions, and regulatory approvals, was already before it.
There was also a pointed fairness argument the Court leaned on: the appellants themselves had explicitly asked the Supreme Court to invoke Section 22 in their own notice of appeal and brief. Having invited the Court to exercise that power, they couldn't then turn around and argue the Court lacked the basis to do so. Taking that as effectively conceded, and combined with the appellants' own conduct at trial — including abandoning a motion they were invited to move, in favour of pursuing other applications, and filing then withdrawing multiple stay applications across different courts — the Court concluded the pattern reflected a deliberate strategy to frustrate the merger through delay rather than a genuine pursuit of legitimate grievances.
Reviewing the merger scheme itself, the Court found no evidence of the fraud, bad faith, or unfairness alleged. The document contained detailed protections for both consenting and dissenting shareholders, and reflected a genuine effort to balance the interests of shareholders, depositors, employees, and regulators. The Court noted, too, that Nigerian company law expressly preserves a dissenting shareholder's right to pursue appropriate remedies even after a merger is sanctioned — meaning sanctioning the merger now didn't leave the appellants without any future recourse if they could actually substantiate their allegations properly.
On that basis, the Court directly sanctioned the scheme of merger.
A Pointed Word About Litigation Strategy
One of the more striking parts of the judgment was its direct commentary on how the case had been conducted. The Court didn't mince words about what it saw as a pattern of interlocutory applications, filed and then withdrawn across multiple courts, that appeared calculated to hold up the substantive proceedings rather than resolve them. It underlined that the judicial process exists to serve justice, not to be weaponized by a party looking to stall a commercial outcome it doesn't like — and that courts, going forward, need to be vigilant against exactly this kind of tactic, particularly in sectors like banking where prolonged uncertainty carries real systemic risk.
Final Verdict
The Supreme Court, by a 4–1 majority, dismissed the preliminary objection to the appeal's competence (Garba, J.S.C. dissenting in part). It then unanimously dismissed the appeal on its merits, upheld the Court of Appeal's costs award, and — invoking its powers under Section 22 of the Supreme Court Act — directly sanctioned the scheme of merger between Providus Bank Limited and Unity Bank Plc.
Key Takeaways
- Labelling a ground of appeal "jurisdictional" doesn't make it so. Courts look past the words counsel chooses to the real substance of the complaint — allegations requiring factual investigation are grounds of mixed law and fact, needing leave to appeal.
- A party can't invite a court to exercise a power and then object when it does. Asking the Supreme Court to invoke Section 22 while simultaneously disputing its basis for doing so is a contradiction courts won't accept.
- Case-management decisions aren't fair hearing violations just because a party dislikes them. A genuine fair hearing complaint requires showing real, specific prejudice — not just dissatisfaction with a court's chosen sequence of hearings.
- Filing nearly identical briefs across multiple parties with aligned interests violates procedural rules meant to prevent exactly that — even where it doesn't sink the underlying case.
- The Supreme Court can, and sometimes will, resolve a matter itself rather than send it back down. Where the full record is already available and remitting would just cause further delay, Section 22 lets the Court cut straight to a final answer.
- Courts are increasingly willing to call out litigation strategies aimed at delay rather than resolution — particularly where repeated applications, later withdrawn, suggest a pattern rather than a genuine legal grievance.
This post is for general informational and educational purposes only and does not constitute legal advice.
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