Chief R.A. Okoya Vs S. Santilli (1994)

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BELGORE, JSC.

Despite the rambling seventy-three paragraph statement of defence in answer to the statement of claim, it is clear that the issues between the parties at the trial court through Court of Appeal can be summarised as follows:

(a) Which is the real Memorandum and Articles of Association between the two competing ones?

(b) What is the share capital of the company?

(c) Who are the shareholders (members) of the company, Albion Construction Company Limited?

The Federal High Court resolved questions (a) and (b) in favour of the plaintiffs: but question (c) was not resolved in their favour. The plaintiffs then appealed to the Court of Appeal just as the defendants also did on questions (a) and (b). The Court of Appeal, upholding the decision of Federal High Court on questions (a) and (b) set aside the decision on question (c) and proceeded to make ancillary orders in respect of its decision on this question.

To have a thorough grasp of this matter, it is pertinent to quote portions of the pleadings after summarising what the entire action is all about:

Albion Construction Limited, the third plaintiff in this case, was incorporated in 1976 under Companies Decree, 1968 and was given a certificate of incorporation No. RC 19475.

The subscribers to the Memorandum and Articles of Association were the 1st plaintiff and 2nd plaintiff who are husband and wife, each taking up a share.

The Memorandum and Articles of Association of the Third defendant company lodged with the Companies Registry could not be found in the file at Abuja and a copy had to be certified as true copy which later became Exhibit A in this case.

Then the Statement of Claim continued as follows:-

“20. The 1st and 2nd defendants are qualified as persons resident outside Nigeria” within the meaning of that expression in Section 10 of the Exchange Control Act, 1962. Accordingly, the permission of the Federal Minister of Finance is required whenever the said defendants, in their capacity as persons so qualified want –

(a) the 3rd plaintiff company to create any interest in its shares in favour of either of the said defendants or

(b) any of the existing shareholders to transfer any of his or her shares to either or both of the said defendants or