General Electric Company V. Harry Ayoade Akande & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C.

The Appellant herein, General Electric Company Limited, is the 4th defendant in suit No. FHC/L/22/90 at the Federal High Court sitting in Ikoyi Lagos, and has appealed against the judgment of the Court of Appeal delivered on 6th October, 2008. Other 4 defendants 1st, 2nd, 3rd and 5th did not appeal. The crucial and amazing aspect of this appeal is that the main appeal was pending and without hearing the Court of appeal decided abruptly to dismiss the appellant’s appeal without hearing notwithstanding that the parties had filed their respective briefs of argument. The same court, now lower court struck out also without hearing the appellant’s motion on Notice for leave to amend its notice of appeal, appellants brief of argument and reply brief.

The 1st Respondent and one other were shareholders and directors in the 4th defendant/respondent company. Both had informed the 4th defendant that they were not happy with the way affairs of the 4th defendant’s company were being run. As a result of the said internal wrangling, Harry Ayoade Akande instituted suit No. FHC/22/90 in 1990 against the 2nd to 5th respondents, the Appellant inclusive.

The amended statement of claim is as contained on pages 223 – 235. By its paragraph 46 the plaintiff claimed thus:-

‘WHEREOF the plaintiff claims against the 1st – 4th Defendants jointly and/or in the alternative, severally, save where otherwise specifically indicated, and for the benefit of the 5th Defendant as follows:-

i) A Declaration that all funds, fees, commissions remuneration and other sums of money paid or payable by the 4th defendant to the 3rd and/or the 1st and or 2nd defendant (s) [or any or either or all of them] under the various sales representative agreements between the said defendants are for the benefit of the 5th defendant company by virtue bf the various agreements made between the 4th and 5th defendants, which agreements are legally and validly binding and enforceable on all the parties to this action.

ii) as special damages, commission, at 5 1/2% on the various contracts sums namely:

(a) U.S$1,710631.00 (5 1/2% of US $31,102,385)

(b) N144,677.50 (5 1/2% of N2

(c) US $5,371,003 (5 1/2% of US $97,654,000.00

(d) Yen 914,388,115 (5 1/2% of Yen 16,625,238,457

(e) N766,513.93 (5 1/2% of N13,936,617 .00

(f) US $778,580.00 (5 1/2% of US$14,156.000

(g) N44,000.00 (5 1/2% of N800,000.00.

iii) Interest on the above stated at 21% per annum from the date the sums fell due until judgment and thereafter at 6% until the sums are paid.

iv) as special damages, commission on the sales of locomotives – US$720,460.00 and interest thereon as stated above.

v) An Order that a firm of Chartered Accountants be appointed to conduct an enquiry into the various other commissions paid by the 4th defendant to the 1st, 2nd and 3rd defendants in breach of its agreement with 5th Defendant and the payment over to the 5th Defendant of such sums.

vi) An order of injunction restraining the 4th Defendant from making further payments of commission to the 1st, 2nd and 3rd defendants on the projects forming the subject matter of this action.

vii) An order directing the 6th defendant to withhold from payments due to the 4th defendant an amount not exceeding the sums claimed in this action by the plaintiff as commission due to the 5th defendant from the 4th defendant”.

In response to the suit, the Appellant filed its amended statement of defence and raised the paints of law defences that:-

(a) the suit is incompetent in that the 1st Respondent, the plaintiff ought to obtain leave of court before instituting the action which is a minority shareholder’s action brought on behalf and for the benefit of the 4th defendant (respondent) but failed to obtain such leave.

(b) the said claim is statute barred in that it was commenced 14 to 17 years after the alleged cause of action accrued. See Pages 5 – 12 and reproduced at pages 233 – 243 and 425 – 432 of the “record”.

Having seen the pleaded defects in the plaintiff’s suit, the Appellant, the 4th defendant, filed a motion dated 2nd April, 2001 for an Order to set down for hearing those points of law. However, without hearing the said motion on Notice, the learned Chief Judge of the Federal High Court before whom the matter was previously pending, delivered her ruling on the motion and held that the issues had already been previously litigated.

The Appellant was dissatisfied with the ruling of the trial court, delivered on 20/3/2002 and therefore appealed to the Court of Appeal Lagos Division.

All the parties in the appeal exchanged their respective briefs of argument.

On the 6th October, 2008, the motion the appellant’s Notice of appeal was fixed for hearing. What is to be noted here is’ that the substantive appeal was not fixed for hearing on the said 6/10/2008. The presiding justice of the Court of Appeal suddenly proceeded to dismiss the appeal without hearing either the motion or the substantive appeal. His Lordship has this to say:-

“…..In the circumstances we agree with the 5th respondent’s counsel that this is an appropriate case for this court to invoke the Provisions of Order 6 Rule 6 of the rules of this court. Consequently in our final consideration of the application for adjournment it should be refused. Since the motion dated 25/9/08 is incompetent in terms of the ambiguity contained in its prayers it cannot be adjourned but instead, it is hereby struck out. The appeal itself even though it is not for hearing today can however be treated in terms with Order 6, Rule 6 of the Court of Appeal rules 2007 (supra) it is accordingly hereby dismissed. Costs of N30,000.00 is awarded to each of the 1st and 5th respondents”.

Not satisfied with the above decision of the court below the Appellant again further appealed to the Supreme Court. The appeal was heard on appellant’s brief alone as ordered by this court when all the respondents failed to file their respondents brief of argument.

Argument on issue No. 1 is quite clear. I cannot imagine that a court of law can lawfully decide a matter before it without hearing. It is a fact that cannot be altered that the appeal before the lower court on that 6/10/2008 was not fixed for hearing. It was only the motion on notice that was fixed for hearing but the learned justice could not even exercise patience to hear the motion. There was no reason whatsoever for dismissing the main and substantive appeal before it. This is palpably wrong to say the least.

It is totally wrong for all courts below to take an appeal which has not been fixed for hearing on a particular date. The court cannot hear an appeal on a date fixed for hearing of a motion without the consent of both parties and the court.

The court must have read the provisions of Order 6 R 6 of the Court of Appeal rules upside down when without hearing at all dismissed the main appeal on a date fixed for the hearing of the motion without giving audience to both counsel in the matter. This is very sad indeed.

There was no respondents brief in this appeal, I was shocked to discover that none of the counsel, including the learned senior counsel, was bold enough to say that the procedure adopted by both the Chief Judge of the Federal High Court and the learned Justice of the Court of Appeal Lagos were wrong and unacceptable. The preliminary objection filed by the 4th respondent on 27/10/2009 to this appeal is noted. I have gone through the preliminary objection and hold that all the grounds for the objection are misplaced and untenable, same deserved to be dismissed. I therefore hold that the preliminary objection has failed and same is dismissed by me.

In conclusion the appeal succeeds same is hereby allowed. The appeal shall be reverted back to the Court of Appeal Lagos Division for hearing of the appeal by a different panel which was not involved in the hearing of the appeal. N50.000.00 costs to the appellant herein.

SC.337/2008