Kalu V. Odili (1992)
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NNAEMEKA-AGU. J.S.C
In this interlocutory appeal, the parties have held drastically different views, including the configuration of the parties to this appeal. So, parties on both sides have stated the parties widely differently. But because of an issue in this appeal, I should retain the arrangement of parties in the ruling before the Court of Appeal which has led to this appeal.
The antecedents of this appeal are as interesting as the appeal itself. From an affidavit dated 20th January, 1992, Chief Onwuka Kalu (herein designated the “person interested”, Chief Victor I. Odili, Chief N. O. Nwojo, Chief J. I. Orji and Mr. K.A. Maduka have been shareholders and directors of the respondent/Bank. The person interested has been the Chairman of the Bank since 1988 and from the various proceedings before the court he has not been removed. There was a dispute between the different shareholders as to the quantum of shareholding of individual members.
This dispute went to the Lagos High Court as suit No. LD/1715/90 in which all the parties to this suit were parties. This was settled by the parties on 28th December, 1990, when the terms of settlement were made a consent judgment. Another suit in the Federal High Court (suit No. FHC/U23/90) on the election/appointment of the members of the Board of Director was struck out on 13/5/91. Still pending between the parties at the date of motion which led to the order, the subject of this appeal, were suit Nos./152/91 and LD/1063/91. Then on 18th of July, 1991, by an originating summons No. FHC/L/ 104/91 served only on the Bank, the’ applicant, Chief Odili alone sued the Bank in following terms:
(1) that an Extraordinary General Meeting of the Company may be convened by the Court for the purpose of considering and if thought fit passing the, Resolution set forth in the Schedule hereto;
(2) that the Court may give directions as to the manner in which the said meeting to be called, held and conducted and all such ancillary and consequential directions as it may think expedient;
(3) that the costs of this application be provided for;
(4) that the applicant herein be given liberty to make ancillary application(s) hereafter to this Honourable Court as may be necessary, conducive or expedient to the foregoing prayer(s).
SCHEDULE
1. That the audited accounts for the period ending June 30, 1991 be and, are hereby received and adopted.
2. That the capital of the company be increased to forty million Naira by the creation of twenty five million shares of NI each.
3. That the 3rd Annual General Meeting of the Company shall be DATED the 10th day of SEPTEMBER, 1991.
The application was supported by an affidavit of 14 paragraphs. Paragraph 6 of the affidavit in support runs thus:
(a) the consideration and submission of the audited accounts of the Bank for its approval
(b) the need to take very urgent steps necessary to comply with statutory requirements concerning its minimum nominal capital, and
(c) the need to arrange for the third Annual General Meeting.”
This application was heard on 13th September, 1991, and, as it was not opposed by Chief F.R.A. Williams, (S.A.N.) for the respondent, the prayers therein, were granted by Jinadu, J., sitting in the Federal High Court, Lagos. A further order of 19/9/91 was made on the application of Mr. C. Anyaegbunam, of counsel, for the respondent further implementing the orders of 13th of September. Justice Agoro, J.C.A., (rtd.) was appointed Chairman of the Bank for the Meeting.
Then the present-appellant brought an action, Suit No. FHC/U115/ 91 against, the Bank, the respondent, the applicants and 2 others claiming for, inter alia an order setting aside the above order and for an injunction restraining the defendants their agents privies and servants from convening a meeting of the Bank pursuant to the said order in suit No.FHC/L/M104/91. This was followed by an application for a stay of execution and an interlocutory injunction. Upon an objection taken by Chief Williams (S.A.N.) for the Bank the learned trial judge, Jinadu, J., struck out the suit on the grounds that the plaintiff, Chief Onwuka Kalu had no locus standi to institute the action and so the court lacked jurisdiction to entertain it.
The plaintiff appealed against the striking out order. Further, he filed a motion in the Court of Appeal, Lagos praying for the following reliefs:-
“1 granting leave of the Court of Appeal to the applicant/the person interested to appeal against the decisions, orders and/or directions of the Federal High Court Lagos dated 13th and 19th September, 1991 in this suit as an interested person;
2. staying the execution of or compliance with the orders, and/or directions of the Federal High Court Lagos presided over by Hon. Mr. Justice Jinadu., dated 13th and 19th September, 1991 respectively in this suit pending the determination of the appeal the applicant seeks leave of this Honourable Court to lodge thereto;
3. directing that no steps or further steps shall be taken to hold the extraordinary General Meeting of Fidelity Union Merchant Bank Limited ordered by the Hon. Mr. Justice Jinadu, J., of the Federal High Court, Lagos on 13th and 19th September, 1991 to be held on 14th October, 1991 until the determination of the appeal which the High Court, Lagos on 13th and 19th September, 1991 to be held on applicant seeks leave of this Honourable Court to lodge against it;
4. staying any further ancillary proceedings that may be initiated under the liberty to apply granted to the respondents in this suit until the determination of the appeal which the applicant seeks leave of this Honourable Court to lodge thereto and for such further or other order or orders as this Honourable Court may deem fit to make in the circumstances.”
Chief Williams again raised a preliminary objection as to forum.
I may pause here to observe that from the parties to the motion, the applicants were stated to be Chief N.O. Nwojo, Chief J. Iro and Mr.Kalu Agwu Maduka and not Chief Onwuka Kalu who in fact filed the motion for leave to appeal. This feature of the application has been made an issue in this appeal. I shall deal with this later. Suffice it to say that the Court of Appeal, per Achike, J.C.A., with whose judgment Kalgo and Tobi, JJ.C.A., concurred, upheld the objection and struck out the application on two grounds, namely:
that the application ought to have been made in the first instance in the High Court, and that
(ii) the applicant had not shown any special circumstances which made it impossible or impracticable to have brought the application in the High Court first.
This appeal is against that striking out order.
Further, the appellant brought an application dated 20th January, 1992, to this court praying, inter alia for accelerated hearing, for accelerated hearing for a reversal of the execution of the orders and directions of Jinadu, J., made on the 13th and 19th September, 1991, for setting aside the proceedings and decision of the Extraordinary General Meeting of the Bank held on the 14th of October, 1991, and Annual General Meeting held on the 31st of October, 1991, and nullifying all the decision taken at the said Meetings. In support of the application the appellant/applicant swore to a 42-paragraph affidavit. It appears to me that his grievances in these proceedings were summarised in paragraphs 10 – 18 where he deposed as follows:
“10. Although the 3rd, 4th and 5th respondents herein were not made parties to the Originating Summons aforesaid they (3rd, 4th and 5th respondents) in the full knowledge of:
(a) Clauses 8 and 10 of the Consent order/Compromise judgment dated 8/12/90 in suit No.LD/1715/90 annexed and marked Exhibit “KA”
(b) My interests and other affected registered shareholders’ interests in the shares of the Bank, and
(c) The provision of section II of the Banks and other Financial Institutions Decree No.25 of 1991 colluded with the 1st and 2nd respondents and applied to the Federal High Court by motion dated 17/9/91 and filed at 2.00 pm. on 18/9/91 in, suit No. FHC/L/M104/91 for orders that, inter alia the resolutions set forth in the schedule to the motion regarding the transfer of shares among certain shareholders be passed and same duly ratified at the Federal High Court Ordered Extra-Ordinary General Meeting of the Bank to be held on 14/10/91. Annexed and marked Exhibit “CO” is copy of the Motion and Supporting Affidavit.
11. My counsel Babatunde Oshilaja advised and verily believe his advice that suit No. FHC/L/MI04/91 namely the Originating Summons and the Subsequent Motion on Notice aforesaid were and are BARRED by section 11 of the Banks and other Financial Institutions Decree, 1991.
12. I am in fact the substantive CHAIRMAN of the Bank and in fact the office of the CHAIRMAN of the Bank was not vacant and there was in fact no dispute or conflict whatsoever about (appellant/applicant) was in fact not in capacitated in any way nor suffer any disability recognised by law to disqualify me from so acting.
13. There were in fact no facts whatsoever canvassed in the affidavit of Chief Victor I. Odili in support of the Originating Summons Why I (appellant/applicant) should not, as usual, preside at any meeting of the Bank.
14. The orders/directions of Hon. Jinadu, Judge, dated 13/9/91 in Suit No.FHC/L/M104/91 appointing Hon. Justice I. O. Agoro (retired) justice of the Court of Appeal as the Chairman of the Ordered meeting of the Bank was in fact made without giving me as the substantive Chairman of the Bank any hearing.
15. In fact the aforesaid order of Jinadu, judge, deprived me of my individual right and privilege of being the CHAIRMAN of the Bank for time being conducting or presiding or acting as CHAIRMAN at its extra-Oridinary General Meeting and the 3rd Annual General Meeting aforesaid and it has continued to deprive me of the right to preside at Board of Directors Meetings or such other meetings of the bank howsoever described.
16. I was in fact not and never made a party and I was in fact never informed or put on notice and the knowledge never infact came to me and I was in fact completely unaware of the existence or and pendency of suit No.FHC/L/MI04/91. Its hearing or trial and the consent order granted therein on 13/9/91 and 19/9/91 and I did not and could not infact have applied to be made a party thereto and the whole case was in fact conceived, contrived and concluded behind my back and without regard for or to my life interests either in my individual, personal or corporate capacities in the Bank in the matter placed before the Federal High Court.
Annexed and marked Exhibit “C and C2” are the Orders of Hon. Mr. Justice Jinadu, Judge, dated 13th and 19th September, 1991 respectively in the aforesaid suit.
17. While the respondents in fact brought the motion against the Bank who is not the registered shareholder of the shares involved the respondents at one and the same time in fact ignored, refused or failed to join any of the affected registered shareholders or directors of the Bank in suit No. FHC/L/M104/91 so that there was in fact nobody whose interest was affected by the originating Summons and the s
Case Number: SC 9/1992
